Order After Hearing POSCal. Super. - 6th Dist.November 23, 2020SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA J DOE, Case N0. 20-CV-373940 Plaintiff, ORDER RE: DEMURRER TO THE FIRST AMENDED COMPLAINT VS. ROKU, INC, et a1., Defendants. The demurrer to the first amended complaint (“PAC”) by defendant Long-Ji Lin (“Lin”) came 0n for hearing before the Honorable Drew Takaichi 0n August 24, 2021, at 9:00 am. in Department 2. The matter having been submitted, the court orders as follows: Factual and Procedural Background This is a FEHA action for employment discrimination based ‘0n mental disability by plaintiff J Doe (“Plaintiff”) against defendants Roku, Inc. (“Roku”) and Long-Ji Lin (“Lin”) (collectively, “Defendants”).1 ' On May 4, 2021, the coun (Hon. Takaichi) granted Plaintiff's motion to proceed with this action under the fictitious name J Doc. 1 Case N0. 20-CV-373940 Order Re: Demurrer to the FAC \OW-‘JQKJ‘I-bww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 According t0 the operative FAC, Plaintiffbegan employment with defendant Roku in September 2019 as a Sr. Sofiwarc Engineer, Machine Learning. (FAC at 1] 11.) After several months, Plaintiffbegan experiencing medical issues that caused Plaintiff to become temporarily disabled. (Id. at 11 13.) Specifically, Plaintiff began to suffer from mental instability resulting from Schizoaffective Disorder, Bipolar Type. (Ibid.) As a result, Plaintiff took a medical leave of absence from work from March 10, 2020 through Apn'l 6,2020. (Id. at fil 14.) Plaintiff sought medical treatment on April 3, 2020. (FAC at 1] 15.) After evaluation, Plaintiff’s physician designated Plaintiff as disabled and placed Plaintiff on modified activity from April 3, 2020 through April 17, 2020. (Ibid.) Plaintiff was evaluated by a physician again on April 17, 2020. (FAC at fl 16.) The physician reiterated Plaintiff‘s designation as disabled and continued the part-time work restrictions from April 17, 2020 through April 2'7, 2020. (Ibid.) Despite Plaintiff’s disabled status and modified work schedule, defendant Lin, Plaintiff‘s direct supervisor, knowingly and intentionally forced Plaintiff to work in excess 0f 20 hours a week and did not adhere t0 Plaintiff‘s part-time work restrictions prescribed by Plaintiff’s healthcare provider. (FAC at 1] 17.) Instead, defendant Lin criticized Plaintiff‘s work product, repeatedly called Plaintiff a “failure,” explicitly demanded more than 20 hours of work, and created a hostile work environment for the sole purpose of trying to break Plaintiff down emotionally. (Ibid.) As a consequence, Plaintiff ended up working more than the designated 20 hours per week during the intended-part-time period in April. (Id. at 1] 18.) In mid-June 2020, as a result 0f the hostile work environment at the company, combined with the stress 0f the ongoing COVID-l 9 pandemic, Plaintiffbegan experiencing further mental health issues that required immediate medical attention. (FAC at 1i 20.) Plaintiff informed defendant Roku ofPlaintiff’s need to take a second medical leave ofabsence 0n June 17, 2020. (Ibid.) Defendant Roku granted this request and backdated the leave 0f absence to June 15, 2020, with a projected return date of July 13, 2020. (Ibid.) On June 19, 2020, defendant Roku further instructed Plaintiff to apply for Leave/Short Term Disability with Roku’s 3rd party administrator - Cigla # by n0 later than June 24, 2020. (Ibid.) Case No. 20-CV-373940 Order Re: Demurrer to the FAC But, Plaintiff was not able to immediately submit a disability claim with Cigna because Plaintiff was involuntarily hospitalized on June 22, 2020 due t0 a medical condition. (PAC at 1] 21 .) Nonetheless, a representative from the company proceeded to submit the disability claim on Plaintiff‘s behalf, and Cigna approved Plaintiff‘s disability claim from June 15, 2020 through July 13, 2020. (Ibid.) Even though Plaintiff’s approved medical leave of absence had not expired, Plaintiff’s employment was terminated on July 1, 2020. (FAC at fl 23.) As justification for Plaintiff’s termination, defendant Roku cited job abandonment and the fact that “Cigna also has not received any outreach or reply from you [Plaintiff] initiating a leave of absence.” (Ibid.) Immediater upon being released fiom the hospital, Plaintiff informed defendant Roku’s Human Resources representative that Plaintiffhad been hospitalized. (FAC at fl 26.) As a consequence, Plaintiff requested reinstatement given the extenuating circumstance of the hospitalization. (Ibid.) Defendant Roku however deniedYPIaintiff’s request for reinstatement. (Ibid.) As a result 0f defendant Roku’s actions, Plaintiffhas suffered and continues to suffer pain, humiliation, severe emotional distress, trauma, and sleeplessness. (FAC at 1] 31.) On March 25, 2021, Plaintiff filed the operative FAC against Defendants alleging causes of action for: (1) disability discrimination in Violation 0f the FEHA; (2) failure to engage in the interactive process in violation of the FEHA; (3) failure to accommodate in violation 0f the FEHA; (4) retaliation in violation 0f the FEHA; (5) wrongful termination in violation ofpublic policy; (6) intentional infliction 0f emotional distress; and (7) negligent infliction of emotional distress. On April 27, 2021, defendant Lin filed the motion presently before the court, a demurrer t0 the sixth cause of action on the ground that it fails to state a claim. (Code Civ. Proc., § 430.10, subd. (6).) Plaintiff filed written opposition. Defendant Lin filed reply papers. A further case management conference is set for October 12, 2021. Case No. 20-CV-373940 Order Re: Demurrer to the FAC OOOOMONUI-bLHN-n MNNNNMNNNH-tp-‘p-H-np-‘HHH mflom-DWNHOOOONONLh-hwwfl Demurrer to the S'uith Cause 0f Action - Intentional Infliction 0f Emotional Distress Defendant Lin argues the sixth cause 0f action is subject t0 demurrer because: (1) Plaintiff fails t0 allege extreme and outrageous conduct; and (2) the claim is preempted by the Workers’ Compensation Act. Legal Standard “In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact 0r law. We also consider matters which may bejudicially noticed.’ ” (Blank v. Kirwan (1985) 39 Ca1.3d 31 1, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability t0 prove these allegations, or the poséible difficulty in making such proof does not concern the reviewing court.” (Committee 0n Children 's Television, Inc. v. General Foods Corp. (1983) 35 Ca1.3d 197, 213-214.) “The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting aIl material facts properly pleaded. The court does not, however, assume thle truth 0f contentions, deductions or conclusions 0f law. [I]t is error for a trial court t0 sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of diséretion t0 sustain a demurrer without leave t0 amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson 's, Inc. (2002) 104 Cal.App.4th 845, 850.) Extreme and Outr_ageous Conduct “A cause of action for intentional infliction 0f emotional distress exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability 0f 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.” (Moncada v. West Coast Quartz Corp. (2013) 221 Ca1.App.4th 768, 780, citations and quotation marks omitted.) Case No. 20-CV-373940 Order Re: Demurrer to the FAC “An essential element 0f a cause of action for intentional infliction of emotional distress is ‘extreme and outrageous conduct by the defendant.’ [Citation.]” (Yurick v. Super. CI. (1989) 209 Ca1.App.3d 1116, 1123.) “[T]hé standard for judging outrageous conduct does not provide a ‘bn'ght line’ n'gidly separating that which is actionable from that which is not. Indeed, its generality hazards a case-by-case appraisal 0f conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards 0f civility.” (Id. at p. 1128.) “[I]t is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances 0f aggravation, or for insults, indignities, or threats which are considered t0 amount to nothing more than mere annoyances. The plaintiff cannot recover merely because 0f hurt feelings.” ([bz‘d.) Thus, “[c]0nduct to be outrageous must be so extreme as t0 exceed all bounds 0f that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber C0. (1993) 6 Ca1.4th 965, 1001.) Whether conduct is outrageous is usually a question 0f fact. (Ragland v. U.S. Bank NationalAssn. (2012) 209 Cal.App.4th 182, 204.) The allegations of extreme and outrageous conduct are set forth in paragraph 17 0f the FAC which provide: In an abuse 0f his position 0f power over Plaintiff, and in direct contravention 0f explicit written orders from Plaintiff’s physician t0 work no more than 20 hours a week, Plaintiff’s direct supervisor, Defendant Long-Ji Lin, knowingly and intentionally forced Plaintiff t0 work well in excess 0f 20 hours and demanded that Plaintiff produce new designs, circulate documentation 0f Plaintiff” s plans, keep in continuous communication with colleagues, attend team meetings, and generally be available at the drop 0f a hat. In short, Defendant Long-Ji Lin did not adhere to Plaintiff‘s part-time work restrictions prescribed by Plaintiff’s healthcare provider in the face 0f knowledge that Plaintiff was peculiarly susceptible to emotional distress. T0 the contrary, Defendant Long-Ji Lin callously and purposefully refused t0 adhere to Plaintiff‘s work restn'ctions, baselessly criticized Plaintiff‘s work product, repeatedly and unwarrantedly called Plaintiff a “failure,” explicitly demanded more than 20 hours’ worth of work despite knowledge 0f Plaintiff‘s work restrictions and susceptible mental condition, and generally created a hostile work environment for the sole purpose 0f trying t0 further break Plaintiff down emotionally. Defendant Long-Ji Lin’s conduct went beyond the bounds of human decency, was not consistent with management in the normal course ofbusiness - especially considedng Defendant Long-Ji Lin’s knowledge of Plaintiff’s mental disability at the time - and was not part of the bargained for employment relationship. Case No. 20-CV-373940 Order Re: Demurrer to the FAC komuoxuup 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 28 (FAC at 1] 17.) Defendant Lin argues these allegations amount t0 personnel management activity and thus d0 not rise t0 the level of extreme and outrageous conduct to support a claim for emotional distress. Ln support, he cites Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 (Janken) where the appellate court held that supervisory actions relating to transfers, demotions, and termination were personnel management activity not subj ect t0 an IIED claim. (Janken, supra, 46 Cal.App.4th at p. 80.) The court found the supervisors did not engage in outrageous conduct even where they altered performance appraisals, failed to promote the plaintiffs, and fired the plaintiffs based on their age because such conduct fell within personnel management activity. (Id. at pp. 79-80.) The Cour: 0f Appeal stated: Managing personnel is not outrageous conduct beyond the bounds ofhuman decency, but rather conduct essential to the welfare and prosperity of society; A simple pleading of personnel management activity is insufficient t0 support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination. (Janken, supra, 46 Cal.AépAth at p. 80.) In opposition, Plaintiff contends sufficient facts have been pled to support extreme and outrageous conduct, citing Alcom v. Anbro Engineering, Inc. (1 970) 2 Cal.3d 493 (Alcorn). In that case, plaintiff was a black truck driver employed by defendant Anbro. One day, in his capacity as shop steward for the Teamsters Union, plaintiff Alcorn told another Anbro employee not t0 driver a certain truck at the job site, because the other employee was not a teamster. Then ’ plaintiff told his supervisor what he had done. In response, the supervisor shouted racial epithets and derogatory comments at plaintiff Alcorn. (Id. at pp. 496-497.) Anbro’s secretary allegedly ratified the supervisor’s acts. In a subsequent lawsuit, plaintiff Alcorn alleged the supervisor’s conduct “was intentional and malicious, and done for the purpose of causing plaintiff t0 suffer humiliation, mental anguish, and emotional and physical distress. . .” (Id. at p. 497.) The trial court sustained a demurrer to the complaint without leave t0 amend, and entered judgment accordingly. Thereafter, the California Supreme Court reversed stating: 6 Case No. 20-CV-373940 Order Re: Demurrer to the FAC “Plaintiff has alleged facts and circumstances which reasonably could lead the trier 0f fact t0 conclude that defendants’ conduct was extreme and outrageous, having a severe and traumatic effect upon plaintiff” s emotional tranquility. Thus, according to plaintiff, defendants, standing in a position or relation of authority over plaintiff, aware ofhis particular susceptibility to emotional distress, and for the purpose of causing plaintiff to suffer such distress, intentionally humiliated plaintiff, insulted his race, ignored his union status, and terminated his employment, all without just cause or provocation. Although it may be that mere insulting language, without more, ordinarily would not constitute extreme outrage, the aggravated circumstances alleged by plaintiff seem sufficient t0 uphold his complaint as against defendants’ general demurrer. ‘Where reasonable men may differ, it is for the jury, subject to the control 0f the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous t0 result in liability.’ ” (Id. at pp. 498-499, footnotes omitted.) Here, Plaintiff’s allegations appear t0 align with Alcom as Plaintiff also asserts aggravating circumstances showing that defendant Lin (1) abused his power over Plaintiff; (2) had knowledge 0f Plaintiff’s mental disability; and (3) created a hostile work environment for the sole purpose of trying t0 break Plaintiff down emotionally. (FAC at 1] 17.) While an older decision, Alcom remains good law from the California Supreme Court. (See also Agw'wal v. Johnson (1979) 25 Cal.3d 932, 946, disapproved 0n other grounds in White v. Ultramar, Inc. (1 999) 21 Cal.4th 563, [“Behavior may be considered outrageous if a defendant (1) abuses a relation 0r position which gives him power t0 damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; 0r (3) acts intentionally 0r unreasonably with the recognition that the acts are likely to result in illness through mental distress.”].) Thus, such allegations appear sufficient to establish extreme and outrageous conduct t0 withstand a pleading challenge on demurrer. As a final point, defendant Lin argues that even improperly motivated personnel management decisions cannot support a cause 0f action for emotional distress. (Janken, supra, 46 Cal.App.4th at p. 80.) But, Plaintiff‘s allegations go farther than improper motivation as Plaintiff claims defendant Lin created a hostile work environment solely to break Plaintiff down emotionally which is beyond the scepe of simple personnel management decisions. Nor does the court find the other cases cited in the moving papers to be persuasive as they d0 not involve Case No. 20-CV-373940 Order Re: Demurrer to the PAC OOOO‘xloU’I-DUJNJ-n N N N N N N N N b-K r-I I-A H .-- -A |_a -- r-n b-~ \l ON U1 ¥ DJ [\J '-‘ O \O 00 NJ O\ U] h b) Ix.) r-t IN)m pleading challenges but rather motions for summary judgment/adjudication and a judgment afier court trial. As a consequence, the demurrer is not sustainable on this ground. Workers’ Compensation Act Even if Plaintiff sufficiently alleges extreme and outrageous conduct, defendant Lin argues the emotional distress claim is preempted by the Workers’ Compensation Act. “Where the provisions of the workers’ compensation system apply, an employer is liable without regard t0 negligence for any injury sustained by its employees arising out of and in the course of their employment. The employee, in tum, is generally prohibited from pursuing any tort remedies against the employer 0r its agents that would otherwise apply. The underlying premise behind this statutorily created system of workers’ compensation is the compensation bargain. Pursuant t0 this presumed bargain, the employer assumes liability for industrial personal injury 0r death without regard to fault in exchange for limitations on the amount 0f that liability. The employee is afforded relatively swift and certain payment 0f benefits t0 cure 0r relieve the effects of industrial injury without having t0 prove fault but, in exchange, gives up the wider range 0f damages potentially available in tort." (Light v. Dept. ofParks & Recreation (2017) 14 Ca1.App.5th 75, 96 (Light), internal citations and quotation marks omitted.) “An employee who suffers a disabling emotional injury caused by the employment is entitled, upon appropriate proof, t0 workers’ compensation benefits, including any necessary disability compensation or medical 0r hospital benefits.” (Livz'tsanos v. Super. Ct. (1992) 2 Cal.4th 744, 754.) “So long as the basic conditions 0f compensation are otherwise satisfied, and the employer’s conduct neither contravenes fundamental public policy nor exceeds the risks inherent in the employment relationship, an elfiployee’s emotional distress injuries are subsumed under the exclusive remedy provisions of workers’ compensation.” (Ibid, internal citations omitted.) But, “there are certain types 0f intentional employer conduct which bring the employer beyond the boundaries of the compensation bargain, for which a civil action may be brought.” (Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701; 714.) For example, “[a] number 0f California authorities have concluded claims for intentional infliction 0f emotional distress in the Case N0. 20-CV-373940 Order Re: Demurrer t0 the FAC \DOONJQUI-h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 employment context may be asserted where the actionable conduct also forms the basis for a FEHA violation.” (Light, supra, 14 Cal.App.5th at pp. 97-98 [collecting cases].) In fact, at least one California appellate court holds that “unlawful discrimination and retaliation in violation 0f FEHA falls outside the compensation bargain and therefore claims of intentional inflictioin 0f emotional distress based on such discrimination and retaliation are not subject to workers’ compensation exclusivity.” (Id. at p. 101.) Defendant Lin argues Plaintiff fails to plead facts showing Plaintiff’s emotional distress can be attributed t0 conduct outside the ordinary scope 0f Plaintiff’s employment. (See Yau v. Allen (2014) 229 Cal.App.4th 144, 161 [“Physical and emotional injuries sustained in the course of employment are preempted by the workers’ compensation scheme and generally will not support an independent cause of action.”]; see also Singh v. Southland Stone, USA, Inc. (2010) 186 Ca1.App.4th 338, 367 [“An employer’s intentional misconduct in connection with actions that are a normal part of the employment relationship, such as demotions and criticism 0f work practices, resulting in emotional injury is considered to be encompassed within the compensation bargain, even if the misconduct could be characterized as manifestly unfair, outrageous, harassment, or intended t0 cause emotional disturbance.”].) In opposition, Plaintiff, relying 0n Light, contends the emotional distress claim should survive demurrer as it is premised 0n the FEHA. This contention however is not persuasive as none 0f the FEHA claims, including those based on discrimination and retaliation, are alleged against defendant Lin. Rather, Plaintiff alleges FEHA claims only against defendant Roku. Therefore, the demurrer is sustainable on this ground but Plaintiff will be afforded leave to amend. (See City ofStockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [if the plaintiff has not had an opportunity t0 amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of faimess].) Case No. 20-CV-373940 Order Re: Demurrer to the FAC O \D OO‘NJ Q Ul -h DJ N |- [\_) [Q N N N N [\J N [\J t-a t-a b-I r-A H H p-- b-fi p-A g-I- W \l O\ LII .h UJ N '-‘ O \O OO \J O\ U‘I b ‘UJ [\J b-‘ Disposition The demurrer to the sixth cause 0f action is SUSTAINED WITH 20 DAYS’ LEAVE TO AMEND for failure to state a claim. Dated: 1/g Zé - &[ . // Houimew Takaichi Judge of the Superior Court 10 Case No. 20-CV-373940 Order Re: Demurrer to the FAC SUPERIOR COURT OF CALIFO ' COUNTY OF SANTA CLARA DOWNTOWN COURTHOUSE 191 NORTH FIRST STREET SAN]OSE,CALIFORNIA 95113 CIVIL DIVISION AUG 27 2021 e ,Ma Clara d_fl-DEPUTY RE: J Doe vs Long-Ji Lin et al Case Number: 20CV37394D PROOF 0F SERVICE ORDER RE: DEMURRER T0 THE FIRST AMENDED COMPLAINT was delivered to the parties listed below the above entitled case as set forth in the sworn declaration below. Jf you, a party represented by you. or a witness to be called on behalf of that party need an accommodation under the American with Disabilities Act, please contact me Court Administrator's office at (408) 882-2700. or use the Court's TDD line (408) 882-2690 or the Voice/TDD California Relay Service (800) 735-2922. DECLARATION 0F SERVICE BY MAIL: l declare that | served this notice by enclosing a true copy in a sealed envelope. addressed to each person whose name is shown below. and by depositing the envelope with postage fully prepaid, in the United States Mail at San Jose. CA on August 27. 2021. CLERK OF THE COURT. by Farris Bryant, Deputy. cc: Manny M Starr 23901 Calabasas Road STE #2074 Calabasas CA 91302 Gregory Clayton Tenhoff 31 75 Hanover Street Palo Alto CA 94304-1 130 CW-9027 REV 12/08/16 PROOF OF SERVICE