R. Anschel v. Intuit, Inc. et al.

According to the Complaint, Intuit recruited Plaintiff in September 2024. (Complaint, ¶ 20.) Plaintiff consistently met and exceeded Intuit’s expectations. (Id. at ¶ 21.) Intuit employed managers and supervisors (Sharma, Adhikary, Sing, and Wu) who allegedly engaged in discrimination and harassment that created a hostile work environment for Plaintiff. (Id. at ¶¶ 5, 22.) The Complaint alleges the managers and supervisors discriminated against Plaintiff based on his Israeli national origin. (Id. at ¶¶ 24-25.)

The Complaint alleges that certain Intuit executives and supervisors made false, malicious statements regarding Plaintiff’s competence in May 2025 that were captured in audio recordings. (Complaint, ¶ 29.) The recordings were subsequently circulated among other Intuit employees. (Id. at ¶ 31.) Wu falsely claimed that Plaintiff planted a microphone in Sharma’s office, leading to the recording incident. (Id. at ¶ 32.) Plaintiff made formal internal complaints to Intuit’s Human Resources department and internal ethics hotline concerning the discriminatory harassment and defamatory statements. (Id. at ¶ 34.) Intuit then commenced a systematic and continuous campaign of retaliation. (Id. at ¶ 35.)

Plaintiff filed a formal Charge of Discrimination in June 2025 against Intuit with the U.S. Equal Employment Opportunity Commission (EEOC) and the California Civil Rights Department. (Complaint, ¶ 40.) In retaliation, Intuit posted a job opening for Plaintiff’s position in July 2025. (Id. at ¶ 42.) Intuit terminated Plaintiff in August 2025 even though he received an “Achieving Expectations” rating, a 3% salary increase, a 100% target bonus, and a grant of $150,000 in restricted stock units just days before. (Id. at ¶¶ 44-45.)

At issue is Intuit’s combined demurrer and motion to strike. Plaintiff timely filed an opposition to the demurrer on June 30, which is nine court days before the hearing.

PROCEDURAL ISSUES

The Motion to Strike is Denied

Intuit’s combined demurrer and motion to strike should have been filed as two separate motions. Intuit also did not give proper notice for its motion to strike. “A notice of motion to 4

strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (California Rules of Court, Rule 3.1322, subd. (a).) While Intuit identifies the page and line number of the portions that are sought to be stricken within its memorandum of points and authorities, the California Rules of Court are clear in requiring this information be presented in a notice of motion to strike. Intuit’s motion to strike is denied.

Code of Civil Procedure Section 367

Intuit contends that the Complaint must be amended notwithstanding the outcome of its demurrer because Plaintiff improperly initiated this action under the pseudonym, R. Anschel. Code of Civil Procedure section 367 requires an action to be “prosecuted in the name of the real party in interest, except as otherwise provided by statute.” Courts have permitted the usage of pseudonyms such as “Doe plaintiffs” in litigation, but the usage must be justified. (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 766-767.) Plaintiff does not offer any justification for the abbreviated first name, but agrees to use his full name in subsequent pleadings. (Opposition, 15:13-16.) Plaintiff must use his full name in these proceedings. (Code Civ. Proc., § 422.40.)

REQUEST FOR JUDICIAL NOTICE

Intuit’s request for judicial notice of Plaintiff’s unsigned Charge of Discrimination filed with the EEOC in June 2025 is denied. It does not constitute a court record or an official act of any legislative, executive, or judicial office. (Evid. Code, § 452, subds. (c)-(d).) Intuit offers no information indicating how the facts and propositions are not reasonably subject to dispute. (Evid. Code, § 453, subd. (b) [requiring a request to furnish the court with sufficient information to enable it to take judicial notice of the matter].) Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, 924, fn. 1, is distinguishable. The request in that case concerned recorded documents related to real property, and the court made clear it took notice of their existence but “not of disputed or disputable facts stated therein.”

Intuit’s request for judicial notice of the United States Patent for the Blind application is denied as irrelevant. (See Aquila, Inc. v. Super. Ct. (City and County of San Francisco) (2007) 148 Cal.App.4th 556, 569, [“Although a court may judicially notice a variety of matters [citation], only relevant material may be noticed.”])

LEGAL STANDARDS FOR DEMURRER

In ruling on a demurrer, the court accepts as true all properly pleaded material factual allegations but does not accept as true contentions, deductions or conclusions of fact or law. (Valero v. Spread Your Wings, LLC (2023) 88 Cal.App.5th 243, 253.) Code of Civil Procedure section 430.60 states that “[a] demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.” The California Rules of Court also require that the demurrer itself (distinct from a supporting memorandum) specify the target of any objection and the grounds. (Cal.

Rules of Court, rules 3.1103(c), 3.1112(a), 3.1320(a) [“Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.”]) 5

The court cannot consider extrinsic evidence when ruling on a demurrer. This includes declarations. The court has considered the declaration from Tayanah C. Miller filed in support of the demurrer only to the extent it discusses the meet and confer efforts required by statute.

DISCUSSION

Intuit demurs to the fourth cause of action for defamation and seventh cause of action for intentional infliction of emotional distress (IIED) on the ground that the causes of action are barred by the common interest privilege and Penal Code section 632. Intuit also demurs to the fourth through seventh causes of action on the ground that each fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).)

Common Interest Privilege (Fourth and Seventh Causes of Action)

The common interest privilege is codified in Civil Code section 47, subdivision (c). It provides a qualified privilege for statements made “without malice, to a person interested therein.” The privilege does not apply if a defendant acted with actual malice. Actual malice means the publication was motivated by hatred or ill will toward the plaintiff, or the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff’s rights. (Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 336 (Kachlon).)

“Under Civil Code section 47, subdivision (c), defendant generally bears the initial burden of establishing that the statement in question was made on a privileged occasion, and thereafter the burden shifts to plaintiff to establish that the statement was made with malice.” (Taus v. Loftus (2007) 40 Cal.4th 683, 721.)

Intuit asserts that the statements were made on a privileged occasion under Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985, 995, because “[c]ommunications made in a commercial setting relating to the conduct of an employee have been held to fall squarely within the qualified privilege for communications to interested persons.”

Both causes of action allege that Intuit and its employees acted with malice by publishing defamatory statements concerning Plaintiff’s professional competence, character, and performance. (Complaint, ¶¶ 76, 79, 100, 104.) The allegations of malice are supported by prior allegations that the statements were made despite Plaintiff’s favorable performance reviews. (Id. at ¶ 30; see Kachlon, supra, 168 Cal.App.4th at p. 336.) Taken together, the allegations are sufficient to plead actual malice and overcome the common interest privilege at the demurrer stage. (Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 285 [malice properly pleaded where allegations included ill will and hatred toward the plaintiff].)

The demurrer to the fourth and seventh causes of action based on the common interest privilege is overruled.

Penal Code Section 632 (Fourth and Seventh Causes of Action)

Penal Code section 632 provides in pertinent part that “[e]very person who, intentionally and without the consent of all parties to a confidential communication... records the confidential communication” by “means of any electronic amplifying or recording device” shall be punished as specified. (Pen. Code, § 632, subd. (a).) Confidential communication is defined as “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made...in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.” (Pen.

Code, § 632, subd. (c).) Evidence obtained in violation of Penal Code section 632 is inadmissible in a judicial proceeding unless used as proof in an action for violation of Penal Code section 632. (Pen. Code, § 632, subd. (d).)

Intuit contends the demurrer to the defamation and IIED causes of action must be sustained because they are premised on illegally obtained, inadmissible evidence. Specifically, Intuit insists that the claims rely on confidential conversations recorded in violation of Penal Code section 632. Intuit’s argument that the conversations were confidential relies on the court taking judicial notice of the Charge of Discrimination. The court did not do so. Even if the court were to consider the Charge of Discrimination, it would not be considered as a judicial admission.

At most, it could potentially serve as an evidentiary admission. (Mt. Hawley Ins. Co. v. Lopez (2013) 215 Cal.App.4th 1385, 1425, fn. 21 [“A pleading in a prior civil proceeding may be offered as an evidentiary admission against the pleader on summary judgment. [Citations.] Such an admission is an evidentiary admission, not a judicial admission, and may be rebutted with explanatory evidence from the party against whom the admission is offered.”].)

The allegations of the Complaint do not support Intuit’s theory that the conversation was confidential within the meaning of Penal Code section 632. The Complaint contains no allegations concerning the confidential nature of the conversation. Plaintiff’s defamation and IIED claims are also not solely premised on the recorded conversations. Thus, even if Penal Code section 632 applied, it would not entirely dispose of those causes of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“a demurrer cannot rightfully be sustained to part of a cause of action”].)

Finally, Intuit’s reliance on Simmons v. Marriot Court Yard (N.D.Cal. Dec. 9, 2021, No. 19-cv-04431-PJH) 2021 U.S.Dist.LEXIS 236317, Lappin v. Laidlaw Transit (N.D.Cal. 2001) 179 F.Supp.2d 1111, Geragos v. Abelyan (2023) 88 Cal.App.5th 1005 (Geragos) as authority for dismissing claims based on inadmissible evidence is unpersuasive. None concerned a demurrer. (E.g., Geragos, supra, 88 Cal.App.5th at p. 1030 [finding no abuse of discretion in finding unconsented recordings inadmissible for anti-SLAPP motion].)

The demurrer to the fourth and seventh causes of action based on Penal Code section 632 is overruled.

Demurrer Based on Failure to State Sufficient Facts

Fourth Cause of Action – Defamation

In demurring to Plaintiff’s defamation claim, Intuit argues that the claim fails to allege: (1) a false statement of fact; (2) republication; (3) and lack of privilege. 7

“The elements of a defamation cause of action are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369 (Wong).) A plaintiff must set forth the specific words or substance of the allegedly defamatory statements. (Comstock v. Aber (2012) 212 Cal.App.4th 931, 948, internal citations omitted.)

The Complaint alleges that Intuit and its employees published false and unprivileged statements concerning Plaintiff’s professional competence, character and performance via audio recordings circulated to other Intuit employees. (Complaint, ¶¶ 75-76.) The Complaint also alleges that Wu defamed Plaintiff by falsely claiming to a team member that Plaintiff unlawfully placed a microphone in Sharma’s office. (Id. at ¶ 32.)

Intuit argues that the defamation claim is based on non-actionable opinion because senior leadership’s comments that they “hate” Plaintiff, felt he “lacked character” or “wasn’t a great hire” are opinions, not facts. Opinions are not actionable unless they imply a provably false factual assertion. (Summit Bank v. Rogers (2012) 206 Cal.App.4th 669, 695-696.) The Complaint does not state a cause of action as to any purely opinion statements.

The defamation cause of action is also based on Wu’s false claim about Plaintiff using a recording device, which is not an opinion because it is an objectively verifiable statement. But the Complaint does not allege sufficient facts to determine whether Wu’s false claim was unprivileged. (Wong, supra, 189 Cal.App.4th at p. 1369.) Plaintiff does not address this argument and instead insists the Complaint sufficiently alleges the identity of the speaker, the substance of the statement, publication, and the damaging nature of the statement.

Intuit relies on Plaintiff’s “judicial admissions” in the Charge of Discrimination to contend that Plaintiff cannot allege Intuit’s republication of the recordings. Intuit claims that Plaintiff is bound by his admission before the EEOC that the recordings were published “anonymously.” The court rejects this argument for reasons discussed above. Intuit’s reliance on Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 568 (Mead) and Setliff v. E. I. Du Pont de Nemours & Co. (1995) 32 Cal.App.4th 1525, 1534 (Setliff) does not change the analysis.

In Mead, the court noted it may consider exhibits attached to a complaint, and where the allegations are at odds with the exhibits, the exhibits are given precedence. (Mead, supra, 61 Cal.App.4th at p. 568.) Here, no exhibit is attached to the Complaint. In Setliff, a plaintiff was bound by the allegations in the amended complaint filed in the same action. Here, Plaintiff has filed only the initial Complaint.

A plaintiff bears the burden of proving an amendment would cure any defect identified on demurrer. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) Plaintiff’s opposition failed to meet that burden. But because this is the first pleading challenge, the court will grant leave to amend. (City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)

The demurrer to the fourth cause of action for defamation is sustained with leave to amend.

Fifth Cause of Action – Harassment Based on Race and National Origin 8

Intuit argues Plaintiff’s harassment cause of action under the Fair Employment and Housing Act (FEHA) fails to state sufficient facts because it does not allege race or national origin-based conduct that is severe or pervasive enough to be actionable.

FEHA prohibits employers from harassing employees because of, among other things, their race, religious creed, or national origin. (Gov. Code, 12940, subd. (j)(1).) The elements of a FEHA harassment cause of action are (1) the plaintiff was a member of a protected class; (2) he or she was subjected to unwelcome harassment; (3) the harassment was based on the plaintiff’s protected status; and (4) the harassment unreasonably interfered with his or her work performance by creating an intimidating, hostile, or offensive work environment. (Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 876 (Thompson).)

“[H]arassment consists of conduct outside the scope of necessary job performance, conduct presumably engaged in for personal gratification, because of meanness or bigotry, or for other personal motives.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 63 (Janken).) The plaintiff must show the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her employment. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.)

Here, the Complaint alleges the following harassing conduct based on Plaintiff’s national origin: (1) Wu’s comment, “You know how those [Israel-based Bill Pay team members] are, the personalities are very difficult”; (2) Sharma’s statement that Plaintiff and the only other Israeli employee were “not great hires”; (3) Sharma’s plan to terminate Plaintiff the same way another Israeli employee had been terminated; (4) Sharma’s use of Hindi when engaging in defamatory and discriminatory conversations as an expression of hatred toward non-Indian colleagues; and (5) antisemitic and anti-Israeli posts on Blind, Intuit’s internal forum. (Complaint, ¶¶ 24-28, 33.)

As an initial matter, Intuit’s argument that Plaintiff cannot allege that Intuit had control over the Blind posts is unpersuasive. Plaintiff’s allegation that he reported antisemitic posts on Intuit’s internal forum to human resources implies that Intuit had some control over the Blind forum. (Code Civ. Proc., § 452 [allegations of pleading must be liberally construed, with a view to substantial justice between the parties].) Intuit also argues that its liability for nonemployee conduct depends on its ability to stop and prevent harassment.

That argument is unpersuasive because the Complaint alleges that antisemitic posts were made on Intuit’s internal forum. (Complaint, ¶ 33.) Plaintiff’s ability to prove that Intuit had control over the Blind posts is not relevant on demurrer. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 214 [“the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court [on demurrer].”)

Intuit argues that the Complaint fails to allege severe or pervasive conduct based on Plaintiff’s national origin. The allegations that Plaintiff and another Israeli employee were “not great hires” and terminated cannot, without more, cannot form the basis of Plaintiff’s harassment claim. (Thompson, supra, 186 Cal.App.4th at p. 879 [harassment does not include commonly necessary personnel management actions, such as firing and performance evaluations].) Wu’s comment, Sharma’s use of Hindi in discriminatory conversations, and the Blind posts may constitute a “mere offensive utterance” or inconsiderate comments. But the 9

allegations do not demonstrate the chronic abuse or harassment that would “reasonably interfere with work performance.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870 [evaluating severe or pervasive by the totality of the circumstances, including frequency and severity of the conduct, humiliation or a mere offensive utterance].)

Plaintiff asserts that his working conditions were impacted by unwarranted negative scrutiny, retaliatory micromanagement, reassignment to a manager who openly disliked Plaintiff, pretextual grounds for termination, and the Blind posts. But the Complaint does not allege specific material facts, outside of Intuit’s employment actions, that were “so severe or pervasive” and not “occasional, isolated, sporadic, or trivial” that they altered the conditions of his employment. (Hope v. California Youth Auth. (2005) 134 Cal.App.4th 577, 588 [“plaintiff must show concerted pattern of harassment of repeated, routine or generalized nature.”])

Plaintiff did not meet his burden to demonstrate a reasonable possibility of amendment. But because this is the first pleading challenge, the court will grant leave to amend.

The demurrer to the fifth cause of action is sustained with leave to amend.

Sixth Cause of Action – Failure to Prevent Discrimination, Harassment, and Retaliation

In demurring to the sixth cause of action, Intuit argues that (1) the claim rises and falls with the fifth cause of action for harassment; and (2) FEHA does not support a claim for a failure to prevent retaliation.

Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code §12940, subd. (k).) An actionable claim under Government Code section 12940, subdivision (k) is dependent on an actual claim for discrimination or harassment. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021.)

Because Intuit has not challenged Plaintiff’s second cause of action for discrimination based on race and national origin, the claim remains viable and supports the sixth cause of action. The demurrer is overruled because a demurrer cannot be sustained to part of a cause of action. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) The court also notes the unpublished federal decision cited by Intuit (Duran v. Stock Bldg. Supply West, LLC (C.D.Cal. Mar. 9, 2015, No.

CV 14-00511 BRO (FFMx)) 2015 U.S. Dist. LEXIS 96298, at *49) for the proposition that FEHA does not prohibit employers from failing to take all reasonable steps to prevent retaliation is inconsistent with published California authorities. (Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1240 [“we conclude that retaliation is a form of discrimination actionable under section 12940, subdivision (k)”], disapproved on another ground in Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173; Vines v.

O'Reilly Auto Enterprises, LLC (2022) 74 Cal.App.5th 174 [reversing reduction of attorney fees after jury found in favor of plaintiff on retaliation and failure to prevent retaliation claims]; Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 81 [reversing grant of summary adjudication on retaliation and the derivative failure to prevent retaliation claim because triable issues remained].)

The demurrer to the sixth cause of action is overruled.

Seventh Cause of Action – IIED

In demurring to Plaintiff’s IIED cause of action, Intuit asserts that the Complaint does not allege outrageous conduct or severe distress.

The elements of an IIED cause of action are: (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’s suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050, superseded by statute on another point, as stated by Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699.)

Conduct is sufficiently outrageous if it exceeds “ ‘ “ ‘all bounds of that usually tolerated in a civilized community.’ ” ’ ” (Id. at p. 1051.) An IIED cause of action may survive where the conduct at issue violates FEHA and satisfies the elements of the IIED cause of action. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 101.) But a “simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged.” (Janken, supra, 46 Cal.App.4th at p. 80.)

Here, Plaintiff’s IIED cause of action adequately alleges extreme conduct through the campaign of retaliation, the recorded false and malicious statements, and discriminatory treatment based on Plaintiff’s national origin. (Complaint, ¶ 100.) Intuit did not demur to the discrimination cause of action, which is accepted as true at this stage. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243 (Nazir) [IIED claim not barred “ ‘where the distress is engendered by an employer’s illegal discrimination practice’ ”].)

But as to the other elements (Plaintiff’s suffering and causation), the Complaint fails to state a cause of action. The Complaint did not adequately allege the extent of Plaintiff’s emotional distress. Nor did it adequately allege causation between defendants’ conduct and that distress. The Complaint’s general allegation that, “Plaintiff suffered and continues to suffer severe emotional distress, humiliation, mental anguish, and other damages” is insufficient for purposes of demurrer. (Complaint, ¶ 103; see Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 [emotional distress inadequately pleaded where plaintiff “pleaded no facts demonstrating the nature, extent or duration of her alleged emotional distress”].)

Plaintiff has demonstrated the Complaint is capable of amendment by describing the extent of his emotional injuries in meet and confer correspondence conducted prior to the filing of the present demurrer. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading”].) The court will grant leave to amend.

The demurrer to the seventh cause of action is sustained with leave to amend.

CONCLUSION

Intuit’s motion to strike is denied. 11

Intuit’s demurrer to the fourth and seventh causes of action based on the common interest privilege and Penal Code section 632 is overruled.

Intuit’s demurrer to the fourth, fifth, and seventh causes of action based on failing to state sufficient facts is sustained with leave to amend. The court does not grant leave to add any new parties or causes of action. (See Zakk v. Diesel (2019) 33 Cal.App.5th 431, 456.)

Intuit’s demurrer to the sixth cause of action based on failing to state sufficient facts is overruled.

Any amended pleading must be filed and served no later than August 14, 2026.

The court will prepare the order.

- oo0oo -

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