Lynch vs. MDxHealth, Inc.

“[C]ommonly necessary personnel management actions such as hiring and firing, job or project assignments, office or workstation assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 870; See also

Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64-65.) “Harassment, by contrast, consists of actions outside the scope of job duties which are not a type necessary to business and personnel management.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 65.)

Citing Roby v. McKesson Corp. (2009) 47 Cal.4th 686 (“Roby”), Plaintiff asserts personnel management actions can demonstrate harassment; however, the circumstances within this case are distinguishable. Here, Plaintiff does not allege a widespread pattern of bias, wherein personnel management actions were used to convey an anti-age message, akin to the circumstances discussed in Roby. (Id. at p. 708-709.) For example, Plaintiff does not allege widespread favoritism of younger employees. Instead, Plaintiff alleges only discrete personnel management actions directed towards him.

The Demurrer to the Third Cause of Action for Retaliation is SUSTAINED, as Plaintiff has insufficiently alleged protected activity.

To establish retaliation in violation of FEHA, Plaintiff must have “engaged in ‘protected activity.’” (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699.) “Protected activity” includes opposing conduct made unlawful by the act. (See Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 699; See also Dinslage v. City and County of San Francisco (2016) 5 Cal.App.5th 368, 382.)

“[A]n employee is not required to use legal terms or buzzwords when opposing discrimination. The court will find opposing activity if the employee’s comments, when read in their totality, oppose discrimination.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1047.) However, “complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct.” (Ibid.)

Here, Plaintiff alleges he “made protected complaints including but not limited to complaints of discrimination, retaliation, and harassment, violations of the Fair Employment and Housing Act, and other state, federal and local rules and laws.” (¶13(b) of Complaint.) However, this allegation is conclusory. While a demurrer admits the truth of all material facts properly pleaded, it does not admit the truth of “conclusions of fact or law.” (290 Division (EAT), LLC v. City and County of San Francisco (2022) 86 Cal.App.5th 439, 452.)

Additionally, even if the Court were to accept the general assertion that complaints were made, Plaintiff does not allege this conduct occurred prior to the relevant adverse employment action, such as to allow for a causal connection.

Moreover, in contrast to the allegation in ¶13, Plaintiff proceeds to allege only that he “questioned and opposed the basis for the PIP by noting his national ranking” and “expressly opposed” the “unrealistic and punitive nature” of the Performance Improvement Plan, prior to his termination. (¶14(b) and ¶14(c) of Complaint.) At most, the Complaint alleges Plaintiff communicated his general belief that the Performance Improvement Plan was unnecessary and unfair. There are no allegations which indicate Plaintiff communicated to Defendant, that he was opposing discrimination, harassment or retaliation.

The Demurrer to the Fifth Cause of Action for Negligent Hiring is SUSTAINED, as Plaintiff alleges no facts which demonstrate Defendant MDxHealth, Inc. “knew or should have known” that hiring any employe created a risk of discrimination, harassment, or retaliation. (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1139; See also CACI 426.)

The Demurrer to the Seventh Cause of Action is SUSTAINED, as Plaintiff failed to sufficiently allege conduct protected by Labor Code section 1102.5.

With respect to this claim, the Complaint asserts: “Plaintiff raised complaints of actual and/or potential illegality, including but not limited to complaints about violations of Labor Code section 232.5, FEHA, Government Code section 12900 et seq., the California Constitution, Labor Code §200, et seq., and the California Code of Regulations, while he worked for defendants....” (¶62 of Complaint.) However, once again, this allegation is conclusory. Notably absent from the pleading, are any factual allegations regarding the alleged complaints.

The Demurrer to the Eighth Cause of Action is SUSTAINED, as Plaintiff has not alleged extreme and outrageous conduct, as necessary to support the claim. (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.)

Whether allegations in a Complaint rise to the level of extreme and outrageous is a determination that can be made as a matter of law. (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494; See also Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883.)

Plaintiff’s claim for intentional infliction of emotional distress is asserted against all Defendants and relies on the same allegations discussed previously, in connection with the claim for harassment: With respect to Defendant Brian Wiest, Plaintiff relies on allegations he “repeatedly canceled scheduled check in meetings” with Plaintiff before ultimately informing Plaintiff he was being terminated. (¶14(d) and ¶15(a) of Complaint.) With respect to Defendant Murvin, the Human Resources representative who took over the termination call, she is alleged to have “informed [Plaintiff] in a dismissive manner that he was being

terminated,” “aggressively stated that [Plaintiff] was an at will employee,” and then “failed to identify any legitimate basis for the termination.” (¶15(b) of Complaint.)

The Court finds these allegations insufficient to rise to the level of extreme and outrageous conduct to support liability.

As to Defendant MDxHealth, Inc., while Plaintiff has successfully alleged discrimination, authority indicates the same will not support intentional infliction of emotional distress: “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. 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. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80; See also Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 946.)

Lastly, the Court declines to rule on Defendant’s demurrer to Plaintiff’s request for punitive damages: “A demurrer is not the appropriate vehicle to challenge a portion of a cause of action demanding an improper remedy.” (Caliber Bodyworks, Inc. v. Superior Court (2005) 134 Cal.App.4th 365, 384, disapproved on other grounds in ZB, N.A. v. Superior Court of San Diego County (2019) 8 Cal.5th 175.) “Since a demurrer does not lie to a part of a cause of action [citation], petitioners’ punitive damage allegations were not subject to real parties’ demurrers.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 163.)

Defendants to give notice.

51 Mapstone vs. Karimi

22-01269276 Demurrer to Amended Complaint

The demurrer to the second cause of action by Defendants Nima Karimi and Afshin Karimi is SUSTAINED with leave to amend.

Defendants Nima Karimi (Nima)* and Afshin Karimi (Afshin)* demur to the second cause of action in the First Amended Complaint (FAC) on the grounds that it fails to state facts sufficient to constitute a cause of action and is uncertain.

*Because Nima and Afshin share the same last name, the court refers to them by their first names; no disrespect is intended.

Although the second cause of action is asserted only against Afshin, the Court treats the demurrer as brought jointly by both Defendants, consistent with the moving papers.

“Negligent entrustment is a common law liability doctrine, which arises in numerous factual contexts. In cases involving negligent entrustment of a vehicle, liability is imposed on [a] vehicle owner or permitter because of his own independent negligence and not the negligence of the driver. Liability for the negligence of the incompetent driver to whom an automobile is entrusted does not arise out of the relationship of the parties, but from the act of entrustment of the motor vehicle, with permission to operate the same, to one whose incompetency, inexperience, or recklessness is known or should have been known by the owner.” (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565 [cleaned up]; accord, Ghezavat v. Harris (2019) 40 Cal.App.5th 555, 559.)

The threshold issue is whether defendant had knowledge that the driver was incompetent or unfit to operate a motor vehicle. (Dodge Ctr. v. Sup.Ct. (Anderson) (1988) 199 Cal.App.3d 332, 341.)

To establish negligent entrustment, the plaintiff must prove all of the following: (1) That the driver was negligent in operating the vehicle; (2) That the defendant owned the vehicle operated by the driver or had possession of the vehicle operated by the driver with the owner’s permission; (3) That the defendant owner knew, or should have known, that the entrusted driver was incompetent or unfit to drive the vehicle; (4) That the defendant permitted the driver to drive the vehicle; and (5) That the driver’s incompetence or unfitness to drive was a substantial factor in causing harm to the plaintiff. (CACI No. 724.)

The FAC fails to adequately allege facts to support a cause of action for negligent entrustment. (FAC, ¶¶ 16-24.)

Other than Nima’s inexperience and the alleged passenger-restriction violation, the FAC fails to allege nonconclusory facts demonstrating that Nima was incompetent or unfit to drive or that Afshin knew or should have known of such incompetence or unfitness. (See Richards v. Stanley (1954) 43 Cal.2d 60, 63 [car owner owes no duty not to entrust car to third party in absence of facts giving owner notice that third person is “incompetent to handle it”]; Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 966–967 [negligent entrustment requires knowledge that driver is incompetent or knowledge of circumstances indicating that fact].)

Inexperience alone, however, does not necessarily indicate incompetency. (Krawitz v. Rusch, supra, 209 Cal.App.3d at p. 966.) Further, although the FAC alleges that Nima violated a passenger