Sabahete Kraja vs Anthony Lopresti et al

considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994). “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315). As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.)

In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian, supra, 116 Cal.App.4th at 994). “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905). “The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.” (Hahn, supra, at p. 747). “A demurrer tests only the legal sufficiency of the pleading.

It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214).

Code of Civil Procedure section 430.10(f), also allows a demurrer to a complaint on the ground the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc., § 430.10, subd. (f); Beresford Neighborhood Assn. v. City of San Mateo (1989) 207 Cal.App.3d 1180, 1191)). A demurrer based on uncertainty is disfavored and will be strictly construed even when the pleading is uncertain in some respects. (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616). A demurrer for uncertainty may be sustained when a defendant cannot reasonably determine to what he or she is required to respond.

For example, when a plaintiff joins multiple causes of action as one, fails to properly identify each cause of action, or fails to state against which party each cause of action is asserted if there are multiple defendants, a complaint is uncertain. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2). Code of Civil Procedure section 430.10, subdivision (d) provides that a demurrer may be brought on grounds of misjoinder of parties. (Code Civ. Proc., § 430.10, subd. (d)).

But “a defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied on; such objection must be taken by plea or answer.” Harboring Villas Homeowners Association v. Superior Court (1998) 63 Cal.App.4th 426, 429. Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348). The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v.

YouTube, LLC (2015) 244 Cal.App.4th 118, 226). However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

III. ANALYSIS A. REQUEST FOR JUDICIAL NOTICE. Defendants County and Lopresti’s request for judicial notice in support of demurrer to plaintiff Kraja’s FAC is DENIED as unnecessary. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant).

B. VIOLATION OF LABOR CODE SECTION 1102.5 AND FEHA RETALIATION Purusant to Labor Code section 1102.5, subdivision (b) states:

An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation

or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

“The elements of a section 1102.5(b) retaliation cause of action require that (1) the plaintiff establish a prima facie case of retaliation, (2) the defendant provide a legitimate, nonretaliatory explanation for its acts, and (3) the plaintiff show this explanation is merely a pretext for the retaliation.” (Patten v. Grant Joint Union High School Dist. (2005) 134 Cal.App.4th 1378, 1384). To establish a prima facie case of retaliation, “a plaintiff must show (1) she engaged in a protected activity, (2) her employer subjected her to an adverse employment action, and (3) there is a causal link between the two.” (Ibid).

Defendant County argues initially that Plaintiff Kraja has not sufficiently alleged that she engaged in a protected activity because Labor Code section 1102.5, subdivision (b), by its own language, is limited to disclosures where the “employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.”

In relevant part, plaintiff Kraja’s whistleblower cause of action alleges she engaged in two distinct protected activities when she disclosed that she “reasonably believed that Defendant’s conduct in [1] failing to investigate and remedy disparate treatment of African Americans and [2] in creating a conflict of interest by having the EOD report directly to County Counsel violated, inter alia, the California Fair Employment and Housing Act,” etc. (FAC, ¶49).

Focusing on the first, the court liberally construes plaintiff Kraja’s complaint to allege that she disclosed her reasonable belief that defendant County had been engaging in race-based disparate treatment discrimination and failed to investigate or remedy such discrimination.

In demurring, defendant County suggests plaintiff Kraja did not have reasonable cause, as a matter of law, to believe defendant County violated any laws regarding discrimination because plaintiff Kraja herself alleges she and attorneys from County Counsel met with defendant County’s Chief Operating Officer, Greta Hansen (“Hansen”), in or about the summer of 2023 [to discuss the report which revealed a continued overrepresentation of African American employees in disciplinary proceedings], but that Hansen did not issue “any directives on how to proceed with addressing the data or taking corrective action” and attorneys from County Counsel “expressed satisfaction that they had met their obligations.” (FAC, ¶¶23 – 24).

An allegation that those persons with “authority to investigate, discover, or correct the violation” did not share the same belief as plaintiff that a violation had occurred does not, as defendant County asserts, dispel or overcome plaintiff Kraja’s allegation that she held such a belief or establish, as a matter of law, that plaintiff Kraja’s belief was without reasonable cause. “Reasonableness is generally a question of fact to be resolved by a jury.” (Edgerly v. City of Oakland (2012) 211 Cal.App.4th 1191, 1206). Plaintiff Kraja has alleged she reasonably believed defendant County had engaged in discrimination and the court finds no basis for determining the “reasonableness” of that belief at the demurrer stage.

Defendant County argues further that plaintiff Kraja did not engage in a protected activity because her request or recommendation that her employer investigate discrimination is simply part of plaintiff’s job responsibilities as EOD Director. Defendant County’s reliance on Rosenfield v. GlobalTranz Enters. (D.Ariz. Nov. 7, 2012, No. CV-11-02327- PHX-NVW) 2012 U.S.Dist.LEXIS 191291 (Rosenfield) is not persuasive as that decision concerned the anti-retaliation

provisions of the Fair Labor Standards Act, 29 U.S.C.S. sec. 201, et seq., not Labor Code section 1102.5. Labor Code section 1102.5, subdivision (b), explicitly protects disclosures “regardless of whether disclosing the information is part of the employee’s job duties.” Moreover, Rosenfield is a federal trial court decision. “A written trial court ruling has no precedential value.” (Santa Ana Hospital Med. Ctr. v. Belshe (1997) 56 Cal.App.4th 819, 831).

The court need not determine whether plaintiff Kraja’s second alleged protected activity (conflict of interest) is sufficient because a defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778—“[A] defendant cannot demur generally to part of a cause of action;” see also PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682—“A demurrer does not lie to a portion of a cause of action;” Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274—“A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action.”).

Defendant County separately demurs to the first cause of action on the ground that plaintiff Kraja has not sufficiently alleged a causal link between her engagement in protected activity and defendant County subjecting plaintiff Kraja to adverse employment action. Defendant County acknowledges a “causal link may be established by an inference derived from circumstantial evidence, ‘such as the employer's knowledge that the [employee] engaged in protected activities and the proximity in time between the protected action and allegedly retaliatory employment decision.’ [Citation.]” (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69). Nevertheless, defendant County contends that in order to establish a prima facie case of retaliation, temporal proximity must be “very close” in time. (Arteaga v. Brink's, Inc. (2008) 163 Cal.App.4th 327, 354).

Defendant County calculates the temporal proximity here, based on allegations of plaintiff Kraja’s complaint, to be at best eight months from the time plaintiff engaged in protected activity (summer 2023 – discussing report of discrimination with Hansen) and plaintiff’s receipt of a notice of recommended termination in February 2024. The flaw with defendant County’s argument is that defendant County ignores plaintiff Kraja’s allegation that, “Up until her termination, Ms. Kraja continued to push for a full analysis and plan to address the issue of disproportionate discipline and termination of African Americans but was continually dismissed by Mr. Coelho.” (FAC, ¶25). In view of such an allegation, the court cannot conclusively determine whether temporal proximity is sufficient or insufficient to establish a causal link.

For the reasons discussed, defendant County’s demurrer to the first cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of Labor Code section 1102.5 is OVERRULED.

For the same reasons discussed, defendant County’s demurrer to the third cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for retaliation [pursuant to Government Code §12940, subd. (h)] is OVERRULED. [Protected activity under Government Code section 12940, subdivision (h), includes “oppos[ing] any practices forbidden under this part or because the person has filed a complaint.” There is no requirement of a reasonable belief].

C. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Defendant County demurs to the second through fourth FEHA causes of action of plaintiff Kraja’s FAC on the ground that plaintiff Kraja has failed to exhaust her administrative remedies. More specifically, defendant County contends the administrative complaint that plaintiff Kraja filed with the Civil Rights Department (“CRD”) are too conclusory and do not provide enough factual detail. The crucial exhaustion test is this: employees satisfy the administrative exhaustion requirement if their court claims are like, and reasonably related to, the claims they stated in their administrative filing.

(Guzman, supra, 68 Cal.App.5th at p. 1117.) If an investigation of what was charged in the administrative complaint would necessarily uncover other incidents that were not charged, plaintiffs can include the latter incidents in their court action. (Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1615 [43 Cal. Rptr. 2d 57] (Okoli).)

If a plaintiff's administrative complaint flunks this test, it frustrates the statute's goals. Agencies cannot unearth and conciliate problems if plaintiffs do not tell the agency what the real problems are. (Kuigoua v. Department of Veterans Affairs (2024) 101 Cal.App.5th 499, 507-508).

Here, plaintiff Kraja’s FAC alleges on October 29, 2024, she filed a complaint with the CRD and was issued a Notice of Case Closure and Right to Sue on the same day. (FAC, ¶14.) Although the FAC alleges a copy of the Notice of Case Closure and Right to sue is attached as exhibit 1, the document is actually found at exhibit 3. Although there are not many factual details, the court finds the second through fourth causes of action “are like, and reasonably related to, the claims [plaintiff Kraja] stated in [her] administrative filing.”

Accordingly, defendant County’s demurrer to the second, third, and fourth causes of action of plaintiff Kraja’s FAC on the ground that the court has no jurisdiction of the subject of the causes of action alleged in the pleading [Code Civ. Proc., §430.10, subd. (a)] and on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., plaintiff failed to exhaust her administrative remedies, is OVERRULED.

D. SEX/ GENDER DISCRIMINATION “To state a prima facie case of discrimination under FEHA, the plaintiff must show (1) she was a member of a protected class; (2) she was qualified for the position she sought or was performing competently in the position she held; (3) she suffered an adverse employment action; and (4) some other circumstance suggests discriminatory motive.” (Wawrzenski v. United Airlines, Inc. (2024) 106 Cal.App.5th 663, 684 (Wawrzenski)).

In demurring to the second cause of action, defendant County argues first that although plaintiff Kraja has alleged that she was performing competently in the position she held (see FAC, ¶¶20 and 56), there are other specific allegations in the FAC which contradict her general allegations of competent performance. Defendant County points to the allegations at paragraphs 34 – 35 of the FAC which allege that a Jackson Lewis investigation into a complaint filed by one of plaintiff Kraja’s subordinates against plaintiff Kraja sustained, or partially sustained, 15 of 18 allegations. Additionally, the FAC alleges defendant County later provided a Supplemental Letter of Findings which indicated four of the sustained allegations amounted to violations of County policy. (FAC, ¶36).

The court will note that the allegations that defendant County highlights do not actually contradict plaintiff Kraja’s allegation of competent performance because plaintiff Kraja alleges her competent performance “until the retaliatory and pretextual investigation that led to her termination.” (FAC, ¶20). Thus, plaintiff Kraja’s acknowledgment of the investigation’s results are actually consistent since plaintiff Kraja alleges her competent performance immediately preceded the discriminatory investigation against her.

Defendant County demurs additionally to the second cause of action by arguing that plaintiff Kraja has not alleged facts which show that the adverse action taken by defendant County was motivated by plaintiff Kraja’s gender. “[T]here must be evidence supporting a rational inference that intentional discrimination, on grounds prohibited by the statute, was the true cause of the employer's actions.” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 361). That being said, “A plaintiff's burden in making a prima facie case of discrimination is not intended to be ‘onerous.’ (Texas Dept. of Community Affairs v. Burdine (1981) 450 U.S. 248, 253 [67 L.E.2d 207, 101 S.Ct. 1089] [‘The

burden of establishing a prima facie case of disparate treatment is not onerous.’].)” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 322).

Here, plaintiff Kraja alleges she “was punished far more harshly than similarly situated male executives.” (FAC, ¶40.) Defendant County acknowledges plaintiff Kraja’s allegations at paragraph 42 where she alleges examples of other “high level male County employees” who received “far less harsh” treatment, but defendant County contends the FAC is lacking any factual allegations to demonstrate that these other male employees are similarly situated.

“[W]hether the plaintiff is similarly situated to other employees is generally a question of fact. Indeed, the employees' roles need not be identical; they must only be similar in all material respects, and materiality will depend on context and the facts of the case.” (Wawrzenski, supra, 106 Cal.App.5th at p. 689; punctuation and citations omitted.). As such, the court will not make a determination, as a matter of law, at the demurrer stage that plaintiff Kraja cannot establish disparate treatment/ discriminatory intent.

Accordingly, defendant County’s demurrer to the second cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for sex [gender] discrimination is OVERRULED.

E. FAILURE TO PREVENT DISCRIMINATION AND/OR RETALIATION A claim for “Failure to Prevent Harassment, Discrimination, and/or Retaliation” necessarily depends upon establishing that harassment, discrimination, and/or retaliation occurred in the first place. Under FEHA, an employer has an obligation to “take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (See Gov. Code §12940, subd. (k).) A prerequisite to a finding of liability for the failure to take all reasonable steps, however, is a finding that the plaintiff actually suffered unlawful discrimination, harassment, or retaliation. (See Trujillo v.

North County Transit Dist. (1998) 63 Cal.App.4th 280, 282 – 283 (Trujillo); see also Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021—“An actionable claim under section 12940, subdivision (k) is dependent on a claim of actual discrimination: ‘Employers should not be held liable to employees for failure to take necessary steps to prevent such conduct, except where the actions took place and were not prevented.’ [Citation.]”.) Defendant County argues that since plaintiff Kraja’s claims for discrimination/ retaliation fail, there can be no claim for the failure to prevent them.

In light of the rulings above, defendant County’s demurrer to the fourth cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for failure to prevent discrimination and/or retaliation is OVERRULED.

F. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS 1. Timely Claim “Before suing a public entity, the plaintiff must present a timely written claim for damages to the entity. (Gov. Code, § 911.2; State of California v. Superior Court (2004) 32 Cal.4th 1234, 1239 (Bodde), but see Gov. Code, § 905 [itemized exceptions ...].)” (Shirk v. Vista Unified School Dist. (2007) 42 Cal.4th 201, 208 (Shirk)). Timely claim presentation is not merely a procedural requirement, but is, as this court long ago concluded, “ ‘ “a condition precedent to plaintiff's maintaining an action against defendant” ’ ” (Bodde, supra, 32 Cal.4th at p. 1240, 13 Cal.Rptr.3d 534, 90 P.3d 116, quoting Williams v.

Horvath (1976) 16 Cal.3d 834, 842, 129 Cal.Rptr. 453, 548 P.2d 1125), and thus an element of the plaintiff's cause of action. (Bodde, supra, at p. 1240, 13 Cal.Rptr.3d 534, 90 P.3d 116). Complaints that do not allege facts demonstrating either that a claim was timely presented or that compliance with the claims statute is excused are subject to a general demurrer for not stating facts sufficient to constitute a cause of action. (Bodde, supra, at p. 1245, 13 Cal.Rptr.3d 534, 90 P.3d 116).

(Shirk, supra, 42 Cal.4th at p. 209; accord, Ovando v. County of Los Angeles (2008) 159 Cal.App.4th 42, 65 [“plaintiff suing the state or a local public entity must allege facts demonstrating either compliance with the claim presentation requirement or an excuse for noncompliance as an essential element of the cause of action”]).

The timely claim presentation requirement applies not only to a suit against a public entity, but also extends to suits against a public employee or, in the instant case against defendant Edwards, an allegedly former public employee. Section 950.21 of the Government Code provides, in pertinent part, that "a cause of action against a public employee . . . for injury resulting from an act or omission in the scope of his employment as a public employee is barred" unless a timely claim has been filed against the employing public entity. (See Gov.

Code, § 911.2.) It is settled that the filing of a timely claim against the employing public entity is a condition precedent to a tort action against either the public entity or the employee. (Williams v. Horvath (1976) 16 Cal.3d 834, 838 [129 Cal.Rptr. 453, 548 P.2d 1125]; Harman v. Mono General Hospital (1982) 131 Cal.App.3d 607, 613 [182 Cal.Rptr. 570]). (Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 310; see also Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1750-1751).

Plaintiff Kraja’s fifth cause of action for intentional infliction of emotional distress is directed at individual defendant Lopresti only. Defendant Lopresti contends plaintiff Kraja, in order to make a timely claim, must have presented a claim within six months after accrual. “A claim relating to a cause of action for death or for injury to person ... shall be presented as provided in Article 2 (commencing with Section 915) not later than six months after the accrual of the cause of action.” (Gov.

Code, §911.2, subd. (a); see also Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1118 (Willis)—"Claims for personal injury must be presented not later than six months after the accrual of the cause of action.”). “Accrual for purposes of the Act is the date of accrual that would pertain under the statute of limitations applicable to a dispute between private litigants.” (Willis, supra, 48 Cal.App.5th at p. 1118).

Generally, a cause of action accrues “‘when, under the substantive law, the wrongful act is done,’ or the wrongful result occurs, and the consequent ‘liability arises.’” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397).

Defendant Lopresti contends, however, that plaintiff Kraja’s cause of action for intentional infliction of emotional distress accrued on February 2, 2024, the date plaintiff Kraja alleges defendant Lopresti told her she was “not trainable” and “harshly reprimanded her.” (FAC, ¶39). Since plaintiff Kraja did not, by her own allegation, present her government claim until November 18, 2024 (see FAC, ¶15 and Exh. 1), more than six months after February 2, 2024, defendant Lopresti contends the claim is barred as untimely.

“A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.” (Wassmann v. South Orange County Community College Dist. (2018) 24 Cal.App.5th 825, 853). Thus, contrary to defendant Lopresti’s assertion that the cause of action accrued on February 2, 2024, the FAC does not clearly disclose when the cause of action accrued.

Plaintiff, in opposition, directs the court’s attention to paragraph 43 where she alleges an example of the emotional distress she suffered was her inability to access retiree medical benefits which plaintiff Kraja contends did not occur until her actual termination which allegedly occurred on June 3, 2024 (see FAC, ¶41). Based on a June 3, 2024 date of accrual, plaintiff contends her claim was timely.

Since the allegations do not clearly disclose when the cause of action accrued, the court cannot sustain defendant Lopresti’s demurrer. (See Heshejin v. Rostami (2020) 54 Cal.App.5th 984, 992-993: “‘[A] demurrer based on an

1 Civil Code section 950.2 states, in relevant part, “a cause of action against a public employee or former public employee for injury resulting from an act or omission in the scope of his employment as a public employee is barred if an action against the employing public entity for such injury is barred under Part 3 (commencing with Section 900) of this division or under Chapter 2 (commencing with Section 945) of Part 4 of this division. This section is applicable even though the public entity is immune from liability for the injury.” 18

affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.’”).

2. Statutory Immunity Government Code section 820.2 provides, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

In Caldwell v. Montoya (1995) 10 Cal.4th 972, 989, the California Supreme Court held, “as a matter of law, the decision by members of an elected school board whether to renew the contract of the district's superintendent is a basic policy decision, and thus a discretionary act of the kind for which public employees are entitled to personal immunity under section 820.2 of the Tort Claims Act.” Consequently, the Caldwell court found “the trial court correctly sustained defendants' demurrer to the causes of action against them personally.” (Id.).

Defendant County argues the only conduct plaintiff Kraja alleges defendant Lopresti took involved placing plaintiff Kraja on paid leave, providing work-place criticism, and recommending termination for cause. (FAC, ¶¶37 and 39.) While the ultimate decision to terminate is akin to a decision whether to renew and would be considered discretionary, the court cannot conclude as a matter of law that all pre-termination personnel decisions fall within the discretionary immunity. (See Taylor v. City of Los Angeles Dept. of Water & Power (2006) 144 Cal.App.4th 1216, 1239—“The decisions regarding job assignments, training and promotion may not be characterized as a “ ‘ “quasi-legislative policy-making [decision which is] sufficiently sensitive” [citation] to call for judicial abstention from interference ... the alleged retaliatory actions by [supervisor], as pleaded, are not the type accorded discretionary immunity.”)

Defendant County also cites Government Code section 821.62 as another potential immunity, but provides no argument and has made no showing that it is applicable here as a matter of law.

3. Failure to State a Claim Finally, defendant Lopresti demurs to plaintiff Kraja’s fifth cause of action on the ground that it does not sufficiently state a claim. “The tort of intentional infliction of emotional distress is comprised of three elements: (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 suffered severe or extreme emotional distress; and (3) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.” (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494 (Cochran); see also CACI, Nos. 1600 and 1602).

“There is no bright line standard for judging outrageous conduct and its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility. The process evoked by the test appears to be more intuitive than analytical.” (Cochran, supra, 65 Cal.App.4th at p. 494). “Even so, the appellate courts have affirmed orders which sustained demurrers on the ground that the defendant’s alleged conduct was not sufficiently outrageous.” (Id.). The Cochran court went on to state, “the mere fact that the actor knows that the other will regard the conduct as insulting, or will have his feelings hurt, is not enough.” (Id. at p. 496). “In evaluating whether the defendant’s conduct was outrageous, it is not enough that the defendant has acted with an intent which is tortious or even criminal.” (Id.).

In Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 (Janken), four employees brought an action for age discrimination against their employer under FEHA. The plaintiffs also added a claim for intentional infliction of emotional distress against three of the employer’s individual supervisory employees. The Janken court held that the

2 “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” 19

claims for intentional infliction of emotional distress must fail. “An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency. 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, supra, 46 Cal.App.4th at p. 80). Thus, as Cochran and Janken both make clear, wrongful motivation is of no importance in determining outrageous conduct.

In Murray v. Oceanside Unified School District (2000) 79 Cal.App.4th 1338, 1362 (Murray), the court held that, “a claim for emotional or psychological damage, arising out of employment, is not barred where the distress is engendered by an employer’s illegal discriminatory practices.” However, the pleading must allege “the required degree of outrageousness.” (Murray, supra, 79 Cal.App.4th at p. 1363). In Murray, the plaintiff alleged discrimination based on her sexual orientation. Her amended complaint made allegations of “various insults, criticism, suggestive remarks concerning sex or alleging sexual activity[, ... that] harassing and obscene graffiti was painted outsider her classroom[,] ... verbal harass[ment] at a school in-service meeting when the principal mentioned [plaintiff’s] sexual orientation to the audience, some of whom were unaware[,] harassing comments by coworkers[,]” et al. (Id. at pp. 1345 – 1346).

This is quite different from plaintiff Kraja’s FAC here. Even in her opposition, plaintiff Kraja contends the factual basis for her intentional infliction of emotional distress claim are the allegations that defendant Lopresti demoted her; ignored her complaints; subjected her to a pretextual investigation; placed her on administrative leave; exposed her to petty comments; harshly reprimanded her for conduct not previously disciplined; terminated her; disallowed her from obtaining retiree medical benefits and insurance. Such allegations are more akin to the personnel management decisions in Janken, even if improperly motivated.

Accordingly, defendant Lopresti’s demurrer to the fifth cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional infliction of emotional distress is SUSTAINED with 10 days’ leave to amend.

IV. CONCLUSION Based on the foregoing, Defendant County’s demurrer to the first cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for violation of Labor Code section 1102.5 is OVERRULED.

Defendant County’s demurrer to the third cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for retaliation [pursuant to Government Code §12940, subd. (h)] is OVERRULED. [Protected activity under Government Code section12940, subdivision (h), includes “oppos[ing] any practices forbidden under this part or because the person has filed a complaint.” There is no requirement of a reasonable belief.]

Defendant County’s demurrer to the second, third, and fourth causes of action of plaintiff Kraja’s FAC on the ground that the court has no jurisdiction of the subject of the causes of action alleged in the pleading [Code Civ. Proc., §430.10, subd. (a)] and on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., plaintiff failed to exhaust her administrative remedies, is OVERRULED.

Defendant County’s demurrer to the second cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for sex [gender] discrimination is OVERRULED.

Defendant County’s demurrer to the fourth cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for failure to prevent discrimination and/or retaliation is OVERRULED.

Defendant Lopresti’s demurrer to the fifth cause of action of plaintiff Kraja’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for intentional infliction of emotional distress is SUSTAINED with 10 days’ leave to amend.

Calendar Line # 3 Case Name John Beach vs Ford Motor Company et al