DOE VS. IHERB, LLC

“The rules by which the sufficiency of a complaint is tested against a general demurrer are well settled. We not only treat the demurrer

as admitting all material facts properly pleaded, but also give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Berry v. Frazier (2023) 90 Cal.App.5th 1258, 1268 [cleaned up].)

At the pleading stage, the Court must liberally construe the complaint, drawing all reasonable inferences in favor of Plaintiffs’ asserted claims. (Liapes v. Facebook, Inc. (2023) 95 Cal.App.5th 910, 919.)

“A demurrer must dispose of an entire cause of action to be sustained. Thus, a court must overrule a demurrer to a cause of action if it is based on at least one viable theory of liability.” (Thompson v. Spitzer (2023) 90 Cal.App.5th 436, 451–452 [cleaned up].) “A plaintiff is permitted to plead alternative inconsistent theories.” (Dubin v. Robert Newhall Chesebrough Trust (2002) 96 Cal.App.4th 465, 477.) “[C]ourts may not turn a demurrer into a contested evidentiary matter by determining what the proper interpretation of the evidence is. A court errs when its decision reflects such a consideration of the evidence.” (Panterra GP, Inc. v. Superior Court of Kern County (2022) 74 Cal.App.5th 697, 711 [cleaned up].)

First, Second, and Fourth Causes of Action – Harassment, Sex Discrimination, and Failure to Prevent Under FEHA:

Plaintiff alleges she was employed as HR Director by iHerb between May 2022 – September 2024. Plaintiff alleges she was sexually assaulted by iHerb’s Senior Vice President of Investor Relations, Defendant Kruse, after he apparently “roofied” her at a work event on 7/24/24. (FAC, ¶¶ 16-34.) Plaintiff alleges that rather than investigate her HR report of the incident, Defendant iHerb terminated her a month later despite good job performance. (¶¶ 35- 37.)

Plaintiff alleges Defendants iHerb and Kruse violated FEHA’s prohibition of harassment and sex discrimination in the first and second causes of action and that iHerb failed to prevent harassment and discrimination in the fourth cause of action.

As to the first cause of action for harassment, Defendants contend there is no allegation of severe or pervasive conduct – only an isolated incident on 7/24/24.

Plaintiff responds that the single incident alleged in the complaint was adequately extreme to support her claim for harassment. “A single harassing incident involving ‘physical violence or the threat thereof’ may qualify as being severe in the extreme.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.) Here, construing Plaintiff’s

FAC in the light most favorable to her, she has adequately stated a claim for harassment under Hughes based on the 7/24/24 incident and Defendants’ response thereto.

Regarding the second cause of action for sex discrimination, Defendants argue (1) Plaintiff fails to allege iHerb terminated her because of her sex and (2) Kruse cannot be liable for discrimination as an individual Defendant because he was not Plaintiff’s “employer” under Raines v. U.S. Healthworks Medical Group (2023) 15 Cal.5th 268 and Reno v. Baird (1998) 18 Cal.4th 640. Plaintiff responds that she was targeted by Defendant Kruse because she was a woman and that Government Code section 12940(j)(3) provides for individual liability of an employee for harassment.

As to iHerb, Plaintiff has adequately alleged that iHerb engaged in discrimination including ratifying the alleged sexual misconduct by Defendant Kruse and treating her differently in her employment as a result of the incident. (FAC, ¶¶ 58-64.) The Court must take these allegations as true at the pleading stage.

As to Kruse, Plaintiff argues he may be individually liable for “harassment” under Government Code section 12940(j)(3), she does not address the cases cited by Defendants stating that individual managers/employees cannot be liable for FEHA discrimination claims. “[I]ndividuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Raines v. U.S. Healthworks Medical Group, supra, 15 Cal.5th 268, 276, citing Reno v. Baird, supra, 18 Cal.4th 640, 663.) Therefore, the demurrer is sustained as to the second cause of action against Defendant Kruse.

Regarding the fourth cause of action, Defendant iHerb argues it is not viable because Plaintiff has not established the underlying claims for harassment or discrimination, and Plaintiff has not shown iHerb had prior notice of Defendant Kruse’s alleged propensity for sexual misconduct. As set out above, Plaintiff has adequately pled underlying claims for harassment and discrimination, and sufficiently alleges Defendant iHerb “knew of Mr. Kruse’s penchant for sexual harassment and gender discrimination against its female employees but took no action to remedy the situation.” (FAC, ¶ 23.)

Seventh Cause of Action – UCL:

Plaintiff’s seventh causes of action (erroneously referred to as the sixth cause of action in Defendant’s motion) is based on Defendant iHerb’s alleged “acts of harassment and retaliation...in violation of California law.”

Defendant asserts that Plaintiff merely alleges termination and fails to plead specific facts supporting this claim.

While “an action under the UCL is not an all-purpose substitute for a tort or contract action,” at the pleading stage the plaintiff must merely allege unlawful, unfair, or fraudulent conduct to support the claim and “[a]n unlawful business practice under the UCL is anything that can properly be called a business practice and that at the same time is forbidden by law.” (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1254; Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150

Here, Plaintiff has adequately alleged facts regarding Defendant’s harassment/discrimination which are incorporated into this claim and sufficient to show “unlawful conduct” under the UCL at this stage. Defendant may pursue discovery to further determine Plaintiff’s factual basis for this claim.

Ninth Cause of Action – Negligent Hiring/Supervision:

Defendant argues Plaintiff fails to allege a factual basis for her negligence claim because she admittedly does not recall much of the night of the incident and fails to allege that iHerb knew or should have known that Defendant Kruse would go into her hotel claim. Moreover, Defendant contends this claim is precluded by the workers compensation doctrine, which generally prohibits common law negligence claims arising out of the employment relationship.

Plaintiff responds that she adequately alleges iHerb hired Kruse, knew of Kruse’s unfitness, and harm to Plaintiff resulted. However, Plaintiff does not address Defendant’s workers compensation exclusivity argument.

Simple negligence claims by an employee against their employer are generally barred by the workers compensation exclusivity doctrine. (Labor Code §§ 3601, 3602; see Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1134.) “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. Emotional injuries caused by workplace discipline, including termination, fall within this rule.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161 [cleaned up]; see Labor Code 3600 et seq.)

Here, Plaintiff fails to explain how the claim for negligent hiring/retention against iHerb falls outside the workers compensation exclusivity doctrine. Therefore, the demurrer is sustained as to this claim.

Tenth Cause of Action – IIED:

Defendants argue Plaintiff’s claim for intentional infliction of emotional distress (IIED) fails to allege “extreme and outrageous” conduct by Defendants. Plaintiff responds that a sexual assault by a

high-ranking corporate executive is sufficiently extreme and outrageous at the pleading stage.

“A cause of action for IIED requires proof of: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe emotional distress; and (3) the defendant’s extreme and outrageous conduct was the actual and proximate cause of the severe emotional distress.” (Crouch v. Trinity Christian Center of Santa Ana, Inc. (2019) 39 Cal.App.5th 995, 1007.)

At the pleading stage, the fact alleged in the fact could demonstrate extreme and outrageous conduct by Defendants. therefore, the demurrer is overruled as to this claim.

Plaintiff may amend her second cause of action against Defendant Kruse and her ninth cause of action against Defendant iHerb. Plaintiff is not permitted to further amend her complaint to allege additional claims without leave of court.

10. CLAY MONAGHAN VS. TIK- TOK INC. 2024-01400215 MOTION TO SEAL

Defendant Keith Vermeeren’s Motion to Seal is GRANTED.

“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication. Substantive courtroom proceedings in ordinary civil cases, and the transcripts and records pertaining to these proceedings, are presumptively open.” (McNair v. National Collegiate Athletic Assn. (2015) 234 Cal.App.4th 25, 31 (cleaned up); see In re Marriage of Nicholas (2010) 186 Cal.App.4th 1566, 1575 [strong presumption of public access to court records].)

California Rules of Court, Rule 2.551(b)(1) states that: “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.”

California Rules of Court, Rule 2.550(d) states the following: “The court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exist to achieve the overriding interest.”