Lynch vs. MDxHealth, Inc.

deadline. (Id.) Additionally, the court notes the Arbitration Agreement provides for “written discovery and depositions as provided in the Federal Rules of Civil Procedure ....” (Talebi Decl. ¶ 10, Exh. A, Sec. 7(d).)

Based on the foregoing, the motion to compel arbitration is granted.

Defendants to give notice.

50 Lynch vs. MDxHealth, Inc.

25-01535895 Demurrer to Complaint

The Demurrer to the Complaint brought by Defendants MDxHealth, Inc., Brian Wiest and Karen Murvin is OVERRULED, as to the First, Fourth and Sixth Causes of Action. The Demurrer is SUSTAINED, with 15-days leave to amend, as to the Second, Third, Fifth, Seventh and Eighth Causes of Action.

The Demurrer to the First Cause of Action for Discrimination is OVERRULED. In challenging the sufficiency of this claim, the demurrer firstly argues that Plaintiff conceded poor performance. A required element of a claim for discrimination is that Plaintiff was “performing satisfactorily” in their position. (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

Per the Complaint, Plaintiff was issued a “Performance Improvement Plan (‘PIP’)” in June of 2024, for allegedly “less than satisfactory performance.” (¶14(b) of Complaint.) However, this placement was “inconsistent with [Plaintiff’s] objectively strong performance record” and his “national ranking.” (Ibid.) Moreover, the Complaint alleges that, throughout his employment, Plaintiff “received consistent praise for exceeding expectations and was regularly ranked among the top Strategic Account Managers nationwide.” (¶12 of Complaint.)

The above is sufficient to allege Plaintiff was performing satisfactorily, and to raise an inference the Performance Improvement Plan was not genuinely based on performance.

Additionally, Defendant argues that Plaintiff has not alleged circumstances which suggest discrimination, given he concedes his replacement was 40 years old (¶15(e) of Complaint); however, as noted by Plaintiff, “[i]t is both logically and practically possible for an employer to discriminate against a person on the basis of a protected personal characteristic despite the fact that the person is replaced by someone

with the same characteristic.” (Begnal v. Canfield & Associates, Inc. (2000) 78 Cal.App.4th 66, 74.)

Further, consistent with the circumstances referenced in Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, Plaintiff has alleged he was replaced by someone significantly younger. (Id. at p. 321.) Per the Complaint, Plaintiff was replaced with someone 23-years his junior. (¶11 and ¶15(e) of Complaint.) The Complaint further alleges that Plaintiff was the oldest employee in his job title and the only Strategic Account Manager placed on a PIP. (¶14(b) of Complaint.)

The above allegations are sufficient to “give rise to an inference of unlawful discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

Given Plaintiff has sufficiently alleged a claim for discrimination, the demurrer to the Fourth Cause of Action for Failure to Prevent Discrimination is likewise OVERRULED. Similarly, as discrimination violates public policy, the Demurrer to the Sixth Cause of Action for Wrongful Termination, is OVERRULED. (See Prue v. Brady Co./San Diego, Inc. (2015) 242 Cal.App.4th 1367, 1379.)

The demurrer to the Second Cause of Action for Harassment is SUSTAINED, as Plaintiff has alleged only personnel management actions which cannot support liability. (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.)

To establish harassment, Plaintiff relies on the following allegations: Defendant MDxHealth, Inc. placed him on a Performance Improvement Plan, despite his strong performance record, which imposed a “burdensome list of objectives.” (¶14(b) and ¶14(c) of Complaint.) Defendant Brian Wiest “repeatedly canceled scheduled check in meetings” before ultimately informing Plaintiff he was being terminated. (¶14(d) and ¶15(a) of Complaint.) Finally, Defendant Murvin, the alleged Human Resources representative who took over the termination call, “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.)

“[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.