JONATHAN MUELLER vs AUSTIN J. MA, M.D., A CALIFORNIA PROFESSIONAL CORPORATION, et al.

exercise of discretion.'" (Stewart v. Colonial W. Agency (2001) 87 Cal.App.4th 1006, 1016. Accord, Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1293-1294. See also Code Civ. Proc., Sec. 2016.040, subd. (a) ("A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt, either in person, by telephone, or by videoconference, to informally resolve each issue presented by the motion.").) IV. CONCLUSION Accordingly, the Court continues the Motion hearing, for greatly narrowed, clarified Requests for Production of Documents, and meeting and conferring. Additionally, given some substantially justified arguments coming from each side, the Court is inclined to deny both sanctions requests. If the Motion is informally resolved before the continued hearing date, then Plaintiff shall file a notice of taking the Motion off calendar.

COURT OF CALIFORNIA, COUNTY OF LOS ANGELES Civil Division Central District, Stanley Mosk Courthouse, Department 311 Tentative Ruling

JONATHAN MUELLER vs AUSTIN J. MA, M.D., A CALIFORNIA PROFESSIONAL CORPORATION, et al. | August 19, 2026 8:30 AM | | | NATURE OF PROCEEDINGS: DEFENDANTS AUSTIN J. MA, M.D., MARIA HERNANDEZ AND MARY BOURANG'S DEMURRER TO COMPLAINT. RULING: The Court sustains without leave to amend the Demurrer as to the Seventh Cause of Action (IIED) and otherwise overrules it. Twenty days to file an Answer to the surviving Causes of Action.

Moving Defendants to give notice. I. BACKGROUND On April 24, 2026, JONATHAN MUELLER (Plaintiff) filed a Complaint against AUSTIN J. MA, M.D.; MARIA HERNANDEZ; and, MARY BOURANG (Defendants), listing Causes of Action for: (1) WHISTLEBLOWER RETALIATION (Cal. Lab. Code Sec. 1102.5) (2) WHISTLEBLOWER RETALIATION (Cal. Lab. Code Sec.Sec. 6310, 6311) (3) WHISTLEBLOWER RETALIATION (Cal. Lab. Code Sec. 98.6) (4) RETALIATION FOR DISCLOSING WORKING CONDITIONS (Cal. Lab. Code Sec. 232.5) (5) WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY (6) NEGLIGENT HIRING, SUPERVISION AND/OR RETENTION (7) INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED).

Plaintiff alleges that Defendants retaliated by terminating Plaintiff's employment as a nurse at a medical practice specializing in Hematology and Oncology, after Plaintiff complained about feeling unsafe due to work safety violations, including improper ventilation of toxic fumes, reuse of syringes, contamination of equipment, et cetera. On July 1, 2026, Defendants filed the Demurrer to the Complaint, on several grounds including that the Retaliation claims fail to reference applicable law that would give reasonable cause to believe that the information discloses a violation.

Plaintiff opposes, arguing that all seven claims are sufficiently alleged. Alternatively, Plaintiff requests leave to amend. II. LEGAL STANDARD Demurrers are to be sustained where a pleading fails to plead adequately any essential element of the cause of action. (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 879-880.) A complaint does not necessarily need to be a model of pleading but needs sufficient factual allegations. (E.g., State v. The Superior Court (2001) 87 Cal.App.4th 1409, 1411.) "In considering a demurrer, the court is not required to ignore controlling law merely because the plaintiff does not rely on it." (Dey v.

Continental Central Credit (2008) 170 Cal.App.4th 721, 730.) " '[W]here the nature of

the plaintiff's claim is clear, and under substantive law no liability exists, a court should deny leave to amend because no amendment could change the result.' " (San Mateo Union High Sch. Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 441.) "Evidence Code section 456 provides the trial court must indicate for the record if it denies a request for judicial notice." (Aaronoff v. Martinez-Senftner (2006) 136 Cal.App.4th 910, 919 ["The record contains no indication the request for judicial notice was denied.

We conclude the trial court took judicial notice of the requested matter, particularly in light of its decision."].) Failure to object to requests for judicial notice constitutes a waiver of an objection. (Gentry v. eBay, Inc. (2002) 99 Cal.App.4th 816, fn. 9; Giles v. Horn (2002) 100 Cal.App.4th 206, 228.) III. ANALYSIS A. First-Through-Fourth Causes of Action ((1) WHISTLEBLOWER RETALIATION (Cal. Lab. Code Sec. 1102.5); (2) WHISTLEBLOWER RETALIATION (Cal. Lab. Code Sec.Sec. 6310, 6311); (3) WHISTLEBLOWER RETALIATION (Cal.

Lab. Code Sec. 98.6); (4) RETALIATION FOR DISCLOSING WORKING CONDITIONS (Cal. Lab. Code Sec. 232.5).) Defendants reason that Plaintiff's First, Second, Third, and Fourth Causes of Action fail to allege sufficiently that Plaintiff engaged in protected activity forming the basis of the alleged retaliation. Specifically, Defendants maintain that Business & Professions Code section 4126.8 only applies to pharmacies that compound drug preparations and request judicial of such information. Plaintiff counterargues that, whether USP regulations and Business and Professions Code section 4126.8 apply, are fact questions outside of this procedure, while also requesting judicial notice.

Plaintiff adds that other allegations and cited statutory sections supply the allegations of reasonably believed law violations. The elements of the Cause of Action for Retaliation - Labor Code Section 1102.5(b) (Whistleblowing), as the following: Retaliation against an employee's protected activity; that was a contributing factor for causing an adverse employment action. (Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703, 718. See also Mueller v. County of L. A. (2009) 176 Cal.App.4th 809, 821-822 [Labor Code section 1102.5 requires that disclosed activities employees must violate federal or state law, rules or regulations].)

As for the issue emphasized in the Demurrer, about alleging an applicable law related to a violation, Labor Code "Section 6310 makes it unlawful to fire or otherwise retaliate against an employee who makes a workplace safety complaint with government agencies." (Lujan v. Minagar

(2004) 124 Cal.App.4th 1040, 1043.) Here, the Complaint cites section 6310 and other sections, beyond section 1102.5. (E.g., Complaint, P. 45.) And there are similar provisions, not cited in the Complaint, specifically related to medical staff, which further indicate Plaintiff's reasonable belief that described violations occurred. "A health facility shall not discriminate or retaliate, in any manner, against a patient, employee, member of the medical staff, or other health care worker of the health facility because that person has done either of the following: [P.] (A) Presented a grievance, complaint, or report to the facility, to an entity or agency responsible for accrediting or evaluating the facility, or the medical staff of the facility, or to any other governmental entity." (Cal.

Health & Safety Code Sec. 1278.5, subd. (b)(1).) "Health and Safety Code section 1278.5, subdivision (b)(1) provides that a health facility shall not retaliate against a member of the medical staff for filing a complaint or participating in an investigation, and Labor Code section 1102.5 provides that an employer shall not retaliate against an employee for disclosing a potential violation of law." (Ryan v. Cnty. of Los Angeles (2025) 109 Cal.App.5th 337, 346.) Furthermore, causes of action alleging retaliation under Health & Safety Code section 1278.5, and Labor Code sections 98.6 and 1102.5, and Labor Code section 6310, all have similar requirements. (St.

Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 314.) "Section 98.6 of the Labor Code prohibits discharging an employee for filing a bona fide complaint or claim relating to her rights under the jurisdiction of the Labor Commissioner." (Ibid., at 307.) "Labor Code section 6310, ... provides for reinstatement and reimbursement for lost wages and benefits for an employee discharged or discriminated against for reporting unsafe working conditions." (Ibid.) So, whether USP standards actually govern is not the prescribed test in relation to section 1102.5. (See, e.g., Contreras v.

Green Thumb Produce, Inc. (2025) 116 Cal.App.5th 1251, 1261 ["Contreras's incorrect legal analysis does not necessarily bar his section 1102.5 claim."]; Ross v. Cnty. of Riverside (2019) 36 Cal.App.5th 580, 593 ["Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity."]; Nejadian v. Cnty. of Los Angeles (2019) 40 Cal.App.5th 703, 718 ["Subdivision (b) prohibits retaliation against an employee for disclosing information to certain parties "if the employee has reasonable cause to believe that the information discloses a violation of [law] ....]; Mize-Kurzman v.

Marin Community College Dist. (2012) 202 Cal.App.4th 832, 855, 857 ["there may be a reasonable belief that a violation has occurred, even though the existence of an actual violation may be debatable...."], disapproved on other grounds by People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 734.) And how USP standards are interpreted in legislative contexts, and the parties' Requests for Judicial Notice, is a matter for reviewing courts. Issues of legislative interpretation involve pure questions of law that reviewing courts independently review de novo, without any deference to trial courts. (E.g., Wolf v.

CDS Devco (2010) 185 Cal.App.4th 903, 913; Regents of Univ. of Cal. v. Superior Court

(1999) 20 Cal.4th 509, 531.) Additionally, Defendants improperly attack only part of a cause of action, by focusing upon USP standards, when the Complaint as a whole alleges and incorporates by reference other statutory sections, including Labor Code sections 6310 et seq., 98.6, and 232.5. (E.g., Complaint, P. 34 (" Plaintiff had reasonable cause to believe that the information disclosed constituted a violation of state and/or federal laws, USP standards and California regulations."), 45 (section 6310.), 57 (section 98.6), and 67 ("Plaintiff re-alleges and incorporates by reference, as though fully set forth herein, all preceding paragraphs of this Complaint.").)

Distinguishably, the cited Carter case did not involve pleading sufficiency but a jury trial, and no evidence indicated that the complainant had even intended to disclose any reasonable belief in any law violation. (See Carter v. Escondido Union High Sch. Dist. (2007) 148 Cal.App.4th 922, 933.) With regard to ruling upon demurrers, courts have found unsupportive counsel's citations to authorities that did not address pleading standards. (E.g., Alch v. Superior Court (2004) 122 Cal.App.4th 339, 382, fn. 37 ["Both ... were appeals from a grant of summary judgment ..., and did not address pleading requirements."].)

Further, federal law requiring supportive citations supporting violations for whistleblowing claims, does not govern in California courts. California courts follow procedures governing litigation in their courts, and are not bound by federal procedural law. (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 409.) Hence, with regard to demurrer procedure, the Court does not follow cited Love v. Motion Industries, Inc. (Demurrer, 13:6-17.) B. Fifth Cause of Action (WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY) Defendants assert that Plaintiff's Fifth Cause of Action fails to adequately allege a public policy violated by alleged wrongful termination, as being derivative of the other claims.

Plaintiff responds that the other claims are sufficiently pled in support of the Fifth Cause of Action. A statutory right of action regarding workplace safety does not affect a common law tort of wrongful termination in violation of the public policy based upon workplace safety. (Bos. v. Penny Lane Centers, Inc. (2009) 170 Cal.App.4th 936, 947.) "An employer who fires an employee in retaliation for protesting unsafe working conditions violates fundamental public policy, and the discharged employee may bring a tort action for wrongful discharge in addition to his or her statutory remedies." (Barton v.

New United Motor Mfg., Inc. (1996) 43 Cal.App.4th 1200, 1205.) As a matter of law, Plaintiff properly bases this common law Cause of Action upon work safety complaints, independently of the statutory claims. C. Sixth Cause of Action (NEGLIGENT HIRING, SUPERVISION AND/OR RETENTION) Defendants maintain that Plaintiff's

Sixth Cause of Action fails to satisfactorily allege necessary elements of negligent hiring, supervision, and retention. Plaintiff argues that allegations of the managers' conduct shows their unfitness in employment, referencing Complaint paragraphs 17 through 20 and 89 through 90. The elements of the Cause of Action are these: Employer's hiring, supervision, or retention, of an employee; who is incompetent or unfit; employer had reason to believe undue risk of harm would exist because of the employment; and the harm occurs. (Federico v.

Superior Court (1997) 59 Cal.App.4th 1207, 1213-1214 [generally whether there was negligence in hiring or retaining an employee is a fact question]; Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054, 1055 ["the cornerstone of a negligent hiring theory is the risk that the employee will act in a certain way and the employee does act in that way. Plaintiff has failed to allege those necessary facts."]; Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 815; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.)

Here, Plaintiff has alleged the necessary facts, based upon the manager Defendants' hostility, not responding to Plaintiff's concerns, berating Plaintiff for raising safety concerns, denying law violations, pressuring Plaintiff to administer chemotherapy to patients without proper sanitization, instructing Plaintiff to leave for refusal to perform perceived unsafe practices, refusing to correct violations, and terminating employment because of safety complaints. (E.g., Complaint, P.P. 17, 18, 32-37, and 89.)

The Demurrer is overruled as to the Sixth Cause of Action. D. Seventh Cause of Action (IIED) Defendants contend that Plaintiff's Seventh Cause of Action fails to sufficiently allege outrageous conduct and severe emotional distress. Also, they contend that this Claim is preempted by Workers Compensation. Plaintiffs conclude that sufficient allegations are pled to raise fact questions about outrageous conduct and severe distress. Regarding preemption, Plaintiff analogizes to FEHA cases holding that discriminatory or retaliatory actions are outside of the normal employment environment.

And Plaintiff describes the allegations, regarding termination for safety complaints, as being outside normal work conditions. Plaintiff additionally distinguishes Defendants' cited opinions.

The elements of the Cause of Action for IIED are these: Outrageous conduct by defendant; intentional or reckless causing emotional distress; severe emotional distress; and causation. (Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1259; Nally v. Grace Community Church (1988) 47 Cal.3d 278, 300. See also Pulver v. Avco Fin. Servs. (1986) 182 Cal.App.3d 622, 637 [demurrer should have been overruled, given sufficient allegations that defendant's conduct was, "'outrageous, was engaged [in] with the intent to cause and with conscious disregard of the probability of causing emotional distress.

As a legal result of that conduct, plaintiff did in fact suffer severe emotional distress and incurred the damages'...."]; Hailey v. California Physicians' Service (2007) 158 Cal.App.4th 452, 477 [a complaint sufficiently alleged severe distress by referencing "depression, anxiety, and physical illness," and distress resulting in "vomiting, stomach cramps, and diarrhea...."]; Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 283 [o utrageous conduct is a fact question where reasonable minds may differ]; So v.

Shin (2013) 212 Cal.App.4th 652, 672 ["whether conduct is 'outrageous' is usually a question of fact."]; Kovr-Tv, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028 [outrageous conduct is not a bright-line determination, but depends upon an intuitive appraisal of "values, sensitivity threshold, and standards of civility...."].) Whether IIED claims are available in employee whistleblowing cases depends on whether the conduct was a normal part of the employment relationship and is not preempted by Workers Compensation. (See Shoemaker v.

Myers (1990) 52 Cal.3d 1, 25.) Regarding the defense of preemption, a substantial line of established authorities consistently have held that claims for intentional infliction of emotional distress, specifically based upon whistleblowing, are preempted by the exclusive remedies of Workers Compensation, where even intentional misconduct occurred at the worksite, in the normal course of the employer-employee relationship, and involved risks inherent in the employment relationship. (See, e.g., Miklosy v.

Regents of the Univ. of Cal. (2008) 44 Cal.App.4th 876, 902-903 [holding whistleblower retaliation preempted and inherent in the relationship]; Vuillemainroy v. Am. Rock & Asphalt, Inc. (1999) 70 Cal.App.4th 1280, 1286 ["injuries caused by unsafe working conditions are compensable solely under workers' compensation, even if the employer recklessly or deliberately failed to correct known safety violations."].) (Underscoring added.) Because the nature of Plaintiff's allegations and pleading admissions, and applicable law about preemption, are clearly ascertainable and in issue, the Court sustains the Demurrer without leave to amend, as to the Seventh Cause of Action, based upon Plaintiff's alleged whistleblowing about unsafe working conditions deliberately uncorrected by

Defendants. Such allegations reveal the preemption, as a matter of law. Where "issues are tendered on undisputed facts and are purely legal in nature," the "issue of preemption is properly handled by demurrer...." (Washington Mut. Bank v. Superior Court (2002) 95 Cal.App.4th 606, 612. Accord, Credit Managers Ass'n of California v. Countrywide Home Loans, Inc. (2006) 144 Cal.App.4th 590, 593.) That preemption determination renders it unnecessary to address pleading sufficiency in relation to the elements of IIED. Nevertheless, the Court concludes that outrageous conduct and severe emotional distress are satisfactorily pled. IV. CONCLUSION The Court partially sustains, and partly overrules, the Demurrer, without leave to amend, as specified herein. | Home -->)" -->