DIANA DUNKELIS VS. REUBEN J. DONIG, ET AL

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________

02:00 PM LINE 9 25-CIV-03331 DIANA DUNKELIS VS. REUBEN J. DONIG, ET AL

DIANA DUNKELIS BRADLEY J. MANCUSO REUBEN J. DONIG SCOTT R. RABER

DEFENDANT LEAH BOTTINI'S DEMURRER TO PLAINTIFF'SVERIFIED FIRST AMENDED COMPLAINT

TENTATIVE RULING:

Defendant Leah Bottini’s demurrer to plaintiff Diana Dunkelis’s first amended complaint (FAC) is SUSTAINED with and without leave to amend, as set forth below.

Any amended complaint must be filed within ten (10) days of notice of entry of the formal order.

A. Thirteenth Cause of Action for Harassment (Gov. Code, §12940, subd. (j))

The elements of a cause of action for harassment of an employee under the Fair Employment and Housing Act (FEHA) are as follows: (1) the plaintiff must be an employee, applicant, unpaid intern or volunteer, or a person providing services pursuant to a contract who belongs to a protected class, (2) the plaintiff must show that they were subjected to unwelcome harassment, (3) the harassing conduct must be because of the plaintiff’s membership in a protected class, (4) the harassment must be sufficiently severe or pervasive to alter the conditions of the victim’s employment and create a hostile or abusive working environment, and (5) the standard for employer liability depends on who committed the harassment with an employer being strictly liable for harassment committed by a supervisor or agent while harassment by a non-supervisory co-employee is unlawful only if the employer, or its agents or supervisors, knew or should have known of the conduct and failed to take immediate and appropriate corrective action. (Gov.

Code, § 12940; Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 202- 203; Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228.)

Plaintiff alleges that defendant Leah Bottini discriminated against her based on plaintiff’s age by interfering with plaintiff’s computer, slowing it down, failing to give plaintiff the password to plaintiff’s new computer, disorganizing the firm’s blue files which plaintiff was responsible for maintaining, failing to inform plaintiff of the arrival of medical records, failing to forward subpoenas, locking plaintiff out of filing cabinets and storage rooms, hiding client documents, locking away supplies, converting settlement documents to password protected pdfs so that plaintiff could not access them, changing factual information in documents created by plaintiff so that the information was incorrect, throwing out redacted client documents and serving unredacted documents on opposing counsel, taking plaintiff’s newly purchased office chair, turning off the heat when leaving the office while plaintiff was still working, and making false statements about plaintiff to clients. (FAC, ¶ 54.) Plaintiff alleges that Bottini did these

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ acts because she wanted plaintiff’s job, and was later promoted into plaintiff’s position after plaintiff was terminated. (Id., ¶ 53.)

Plaintiff further alleges that she was subjected to unwanted harassing conduct by Bottini, because of plaintiff’s age, “which led to adverse employment actions against plaintiff, including but not limited to, subjecting her to differential and demeaning treatment, oppression, unhealthy work conditions (i.e. working in freezing temperatures and conditions conducive to mold, fungi, and bacteria), decrease in work load, unwelcome and inappropriate comments and behavior, threats of termination if she spoke out, and actual wrongful termination, in addition to subjecting Plaintiff to a work environment permeated with illegal and unwanted harassing and discriminatory conduct.” (FAC, ¶ 240.)

Bottini argues that these allegations do not show that plaintiff was treated differently because of her protected status and that they do not show severe and pervasive conduct that gives rise to a hostile work environment.

The alleged conduct, taken as true for purposes of demurrer, does not state a cause of action for harassment based on age. Plaintiff has not pled facts showing that Bottini took these allegedly harassing actions because of plaintiff’s age. Plaintiff also has not alleged that Bottini was a supervisor. Nor has she alleged that Doing knew or should have known of Bottini’s allegedly harassing actions.

The demurrer to this cause of action is therefore SUSTAINED with leave to amend.

B. Sixteenth Cause of Action for Intrusion into Private Affairs

A common law claim for intrusion into private affairs requires a plaintiff to prove two elements: (1) intentional intrusion into a private place, conversation or matter, and (2) in a manner highly offensive to a reasonable person. (Marich v. MGM/UA Telecommunications, Inc. (2003) 113 Cal.App.4th 415, 421.)

Plaintiff alleges that defendants installed hidden cameras above her desk and in the reception area, and that she had a reasonable expectation of privacy around her desk. (FAC, ¶ 276.) The FAC is unclear as to whether plaintiff alleges that Bottini installed any cameras. In light of the original Complaint’s allegation against only the Donig defendants, and the lack of specificity, these allegations are insufficient to support a cause of action for intrusion into private affairs against Bottini.

Plaintiff additionally alleges that: “Defendants violated Plaintiff’s right to privacy when MISS BOTTINI was given remote access the office computers, including Plaintiff’s computer, as well as access to all of MR. DONIG’s emails. This was a violation of Plaintiff’s reasonable expectation of privacy—Plaintiff sent MR. DONIG emails that were intended for him only, not for MISS BOTTINI.” (Id., ¶ 277.) The allegations relating to emails are insufficient to support the cause of action because plaintiff had no reasonable expectation of privacy once the emails were sent, since Donig was free to share the contents of emails sent to him with others.

The allegations are also insufficient in relation to access to office computers, since there was no reasonable expectation of privacy on a work device.

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ The demurrer to this cause of action is SUSTAINED with leave to amend only as to the placement of a camera by Bottini. If plaintiff has facts supporting such claims, her counsel must appear at the hearing and state whether such facts exist. If no such facts are alleged to exist, the demurrer is demurrer to this cause of action is SUSTAINED without leave to amend.

C. Seventeenth Cause of Action for Intentional Interference with Prospective Economic Relations

Under California law, a cause of action for intentional interference with prospective economic relations requires five essential elements: (1) an economic relationship between plaintiff and some third party, with the probability of future economic benefit to plaintiff; (2) defendant’s knowledge of the relationship; (3) intentional acts on part of defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to plaintiff proximately caused by acts of defendant. (ZF Micro Solutions, Inc. v. TAT Capital Partners, Ltd. (2022) 82 Cal.App.5th 992, 1002, fn 5.)

Plaintiff does not allege that Bottini is a third party as between plaintiff and the Donig defendants, but instead alleges that she is an employee of defendant Law Office of Reuben J. Doing. (FAC, ¶ 4.) The first element therefore is not satisfied.

The demurrer to this cause of action is SUSTAINED without leave to amend, because plaintiff cannot allege a third party relationship without contradicting the FAC.

D. Eighteenth and Nineteenth Causes of Action for Inducing Breach of Contract and Intentional Interference with Contractual Relations

These causes of action are pled in the alternative “in the event it is determined Plaintiff and DONIG were in a contractual relationship.” (FAC, ¶¶ 296, 308.) However, because plaintiff affirmatively alleges that there was no contract and that she “was misclassified as an independent contractor,” the elements of these causes of action cannot be satisfied. (Id., ¶ 295.)

The demurrer to these causes of action is SUSTAINED without leave to amend.

E. Tenth Cause of Action for Violation of the UCL

To state a claim for violation of California’s Unfair Competition Law (UCL), a plaintiff must establish: (1) that the defendant engaged in a business act or practice falling within at least one of three prongs — unlawful, unfair, or fraudulent — and (2) that the plaintiff has standing by having suffered injury in fact and lost money or property as a result of the unfair competition. (Bus. & Prof. Code, §§ 17200, 17204.)

Plaintiff alleges that “Defendant, LEAH BOTTINI, engaged in unlawful, unfair, and fraudulent business practices as evidenced by violations of public policy and tortious economic interference practices, such as, Intentional Interference with Prospective Economic Relations or, in the alternative, Inducing Breach of Contract and Intentional Interference with Contractual Relations.” (FAC, ¶ 196.) However, as discussed above, plaintiff’s claims for intentional

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ interference with prospective economic relations or, in the alternative, inducing breach of contract and intentional interference with contractual relations are insufficient, and therefore cannot be used as a predicate for this claim. Plaintiff also fails to allege injury in fact resulting from the alleged unfair competition.

The demurrer to this cause of action is SUSTAINED with leave to amend.

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendant Bottini’s counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________

02:00 PM LINE 10 25-CIV-03331 DIANA DUNKELIS VS. REUBEN J. DONIG, ET AL

DIANA DUNKELIS BRADLEY J. MANCUSO REUBEN J. DONIG SCOTT R. RABER

DOING DEMURRER TO PLAINTIFF’S VERIFIED FIRST AMENDED COMPLAINT

TENTATIVE RULING:

The unopposed demurrer of Defendants Reuben J. Donig (Donig) and Law Office of Reuben J. Donig (Law Office, and collectively defendants) to the Verified First Amended Complaint (FAC) by plaintiff Diana Dunkelis (plaintiff) is SUSTAINED with leave to amend.

Any amended complaint must be filed within ten (10) days of notice of entry of the formal order.

A. Twelfth Cause of Action

The demurrer to the twelfth cause of action for sexual favoritism harassment is SUSTAINED with leave to amend for failure to allege facts sufficient to support this cause of action against defendants.

“Sexual favoritism” means that another employee has received preferential treatment with regard to promotion, work hours, assignments, or other significant employment benefits or opportunities because of a sexual relationship with an individual representative of the employer who was in a position to grant those preferences. (Judicial Council of California Civil Jury Instruction 2521C.) The elements of a cause of action for sexual favoritism harassment are:

1. That [name of plaintiff] was [an employee of/an applicant for a position with/a person providing services under a contract with/an unpaid intern with/a volunteer with] [name of defendant];

2. That there was sexual favoritism in the work environment;

3. That the sexual favoritism was severe or pervasive;

4. That a reasonable [describe member of protected group] in [name of plaintiff]’s circumstances would have considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;

5. That [name of plaintiff] considered the work environment to be hostile, intimidating, offensive, oppressive, or abusive because of the sexual favoritism;

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ 6. [Select applicable basis of defendant’s liability:]

[That a supervisor [engaged in the conduct/created the sexual favoritism];]

[or]

[That [name of defendant] [or [his/her/nonbinary pronoun/its] supervisors or agents] knew or should have known of the sexual favoritism and failed to take immediate and appropriate corrective action;]

7. That [name of plaintiff] was harmed; and

8. That the conduct was a substantial factor in causing [name of plaintiff]’s harm.

Allegations of a romantic relationship between a supervisor and an employee, without more, do not give rise to a sexual harassment claim under the Fair Employment and Housing Act (FEHA). (Proskel v. Gattis (1996) 41 Cal.App.4th 1626, 1631.) In Proskel, the trial court granted summary adjudication of the plaintiff’s sexual discrimination and sexual harassment claims against her employer under FEHA. (Id., at p. 1629.) The Court of Appeal affirmed. (Ibid.) Significantly, other than favoritism, the plaintiff did not allege that her former employer led plaintiff or any other employee to believe that they could obtain favorable treatment from him if they became romantically involved with him.

The plaintiff also did not present any facts that showed the manner in which the romantic affair was conducted was so indiscreet as to create a hostile work environment. (Ibid.) The plaintiff further did not present evidence of other pervasive conduct that created a hostile work environment. (Id., at pp. 1629-1630.)

Here, the allegations are insufficient to support the claim that defendants engaged in sexual favoritism. Plaintiff worked as a paralegal, while defendant Leah Bottini (Bottini) was hired as a secretary. Plaintiff claims that a number of adverse employment actions were taken against her, but she fails to allege facts sufficient to support that they were taken because of sexual favoritism. For instance, plaintiff alleges being locked out of her computer and that Bottini was given remote access to all computers, but the FAC alleges that shortly after Bottini started, Donig informed plaintiff that Bottini knew a lot about computers and could take over IT if needed. (FAC, ¶ 56.)

Thus, it is unclear whether such actions occurred due to sexual favoritism. Similarly, plaintiff fails to adequately allege facts to support that the freezing temperatures and conditions conducive to mold, fungi and bacteria were due to sexual favoritism.

B. Thirteenth Cause of Action

The demurrer to the thirteenth cause of action for age harassment is SUSTAINED with leave to amend for failure to allege facts sufficient to support this cause of action. This cause of action is alleged against the Law Office, but not Donig. (FAC, ¶ 235.)

Under the FEHA, it is unlawful “[f]or an employer ... because of ... age ... to harass an employee ....” (Gov. Code, § 12940, subd. (j)(1).) To establish a prima facie case of a hostile work environment, a plaintiff must show that (1) plaintiff is a member of a protected class; (2)

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ plaintiff was subjected to unwelcome harassment; (3) the harassment was based on plaintiff’s protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581, citing Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876.)

Plaintiff alleges that she was in her 60s while working for the Law Office. (FAC, ¶ 239.) The FAC alleges Bottini engaged in certain behaviors to intentionally sabotage every older worker, including plaintiff, and that Donig condoned theses actions. (Id., ¶¶ 54-67, 240.) Bottini allegedly persuaded Donig to terminate the contractual relationship with other older workers over 50, Mike Barnes (IT Technician) and Norma Scritzky (document retrieval support). (Id., ¶ 55.) Donig also stated that they were old and did not know what they were doing. (Id., ¶¶ 62, 66.) However, plaintiff does not allege any similar comments were made to her. As such, the allegations are insufficient to support that any claimed harassment was because of plaintiff’s age.

C. Fourteenth Cause of Action

The demurrer to the fourteenth cause of action for FEHA retaliation is SUSTAINED with leave to amend for failure to allege facts sufficient to support this cause of action against defendants.

It is unlawful “[f]or any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.” (Gov. Code, § 12940, subd. (h).) In order to establish a prima facie claim for retaliation under FEHA, the plaintiff must show (1) the employee 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. (Bailey v.

San Francisco Dist. Attorney’s Office (2024) 16 Cal.5th 611, 636.) When the circumstances surrounding an employee’s conduct are sufficient to establish that the employer knew that an employee is opposing practices forbidden under FEHA, the purpose of the antiretaliation provision is applicable whether or not the employee explicitly and directly told the employer. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1046-1047.)

The FAC alleges defendants retaliated against plaintiff for her complaints of harassment and discrimination, by taking adverse employment actions against plaintiff, including but not limited to, “subjecting her to differential and demeaning treatment, oppression, unhealthy work conditions (i.e. working in freezing temperatures and conditions conducive to mold, fungi, and bacteria), decrease in work load, unwelcome and inappropriate comments and behavior, threats of termination if she spoke out, and actual wrongful termination, in addition to subjecting Plaintiff to a work environment permeated with illegal and unwanted harassing and discriminatory conduct.” (FAC, ¶ 256.) However, plaintiff fails to sufficiently allege facts to support complaints of harassment and discrimination, i.e. engaging in protected activity, as well

September 10, 2026, Law and Motion Calendar Judge Nicole S. Healy Department 28 ________________________________________________________________________ as that these actions were taken against her for such complaints, i.e. a causal link between engaging in protected activity and these adverse actions.

D. Fifteenth Cause of Action

The demurrer to the fifteenth cause of action for failure to prevent harassment, discrimination and/or retaliation is SUSTAINED with leave to amend for failure to allege facts sufficient to support this cause of action against defendants.

The FEHA provides that it is an unlawful employment practice “[f]or an employer...to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) A plaintiff seeking to recover damages under Section 12940, subdivision (k) for failure to prevent harassment must show three elements: (1) plaintiff was subjected to harassment; (2) defendant failed to take all reasonable steps to prevent harassment; and (3) this failure caused plaintiff to suffer injury, damage, loss or harm. (Caldera v.

Department of Corrections and Rehabilitation (2018) 25 Cal.App.5th 31, 43-44.) Because plaintiff fails to allege facts sufficient to support her harassment claim, this claim also fails. (See Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 289 [a finding of harassment or discrimination of the employee was required before an employer could be held liable for failure to take all reasonable steps necessary to prevent employment discrimination and harassment].)

If the tentative ruling is uncontested, it shall become the order of the court. Thereafter, defendants’ counsel shall prepare a written order consistent with the court’s ruling for the court’s signature, pursuant to California Rules of Court, Rule 3.1312 and Local Rule 3.403(b)(iv), and provide written notice of the ruling to all parties who have appeared in this action. The order should be e-filed only, do not email or mail a hard copy to the court.

POSTED: 11:45 am