Gutowski v. Raffini, et al.

Conclusion Defendant American Honda Motor Co., Inc.'s motion for relief from waiver of objections is granted. Plaintiff Diego Ivan Garcia Mendoza's motions to compel Defendant American Honda Motor Co., Inc. to respond to Form and Special Interrogatories, and Requests for Production of Documents and to deem Requests for Admissions admitted are rendered moot.

Department 516 Hearing Date: August 24, 2026 Case Name: Gutowski v. Raffini, et al. Case No.: 26STCV04107 Matter: Demurrer Moving Party: Defendants James Raffini, Charles Raffini, New Clipper Aviation Charter, LLC, New Clipper Aviation, LLC, New Clipper Aviation Acquisition Vehicle I, LLC, and New Clipper Aviation Maintenance, LLC Responding Party: Plaintiff Jeffrey Gutowski Tentative Ruling: Defendants James Raffini, Charles Raffini, New Clipper Aviation Charter, LLC, New Clipper Aviation, LLC, New Clipper Aviation Acquisition Vehicle I, LLC, and New Clipper Aviation Maintenance, LLC's demurrer is sustained in its entirety.

Plaintiff Jeffrey Gutowski ("Plaintiff") brought this action against Defendants James Raffini ("James"), Charles Raffini ("Charles"), New Clipper Aviation Charter, LLC, New Clipper Aviation, LLC, New Clipper Aviation Acquisition Vehicle I, LLC, New Clipper Aviation Maintenance, LLC (collectively "Defendants"), and Does 1 through 100. The Complaint alleges six causes of action for: (1) hostile work environment harassment in violation of FEHA; (2) retaliation in violation of FEHA; (3) failure to prevent discrimination, harassment, or retaliation in violation of FEHA; (4) whistleblower retaliation in violation of Labor Code section 1102.5; (5) wrongful termination in violation of public policy; and (6) intentional infliction of emotional distress. Defendants demur to Plaintiff's first, second, third, and sixth causes of action for failure to allege sufficient facts. Plaintiff opposes.

Legal Standard

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice.¿(Code Civ. Proc., Sec. 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)¿The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law.¿(Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.)¿"In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties." (Code Civ.

Proc., Sec. 452.)¿The court " ' "treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . . ." ' "¿ (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)¿In applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated.¿(Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

Meet and Confer Pursuant to Code of Civil Procedure section 430.41, "a demurring party is required to meet and confer in person, by telephone, or video conference with the party that filed the pleading. . . ." (Code Civ. Proc. Sec. 430.41, subd. (a).) Defendants contend that the parties met and conferred on April 30, 2026. (Lyon Decl., P. 4.) Thus, the parties fulfilled their meet-and-confer obligations.

Demurrer Defendants demur to Plaintiff's first, second, third, and sixth causes of action for failure to allege sufficient facts.

First Cause of Action--Hostile Work Environment "[S]imilar to the federal law's Title VII, California's FEHA "recognize[s] two theories of liability for sexual harassment claims ... '... quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances ... [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.'"" (Hughes v. Pair (2009) 46 Cal.4th 1035, 1043 (Hughes).) "To prevail on a hostile work environment, claim under California's FEHA, an employee must show that the harassing conduct was 'severe enough or sufficiently pervasive to alter the conditions of employment and create a work environment that qualifies as hostile or abusive to employees because of their sex.'" (Ibid.) "With respect to the pervasiveness of harassment, courts have held an employee generally cannot recover for harassment that is occasional, isolated, sporadic, or trivial; rather, the employee must show a concerted pattern of harassment of a repeated, routine, or a generalized nature." (Lyle v.

Warner Brothers Television Productions (2006) 38 Cal.4th 264, 283.) "[A] plaintiff who subjectively perceives the workplace as hostile or abusive will not prevail under the FEHA, if a reasonable person in the plaintiff's position, considering all the circumstances, would not share the same perception. Likewise, a plaintiff who does not perceive the workplace as hostile or abusive will not prevail, even if it objectively is so." (Id. at p. 284.)

Defendants argue that Plaintiff cannot bring his first cause of action because he does not allege that he was a recipient of pervasive conduct, does not allege that he was harassed, and fails to allege a hostile work environment. "For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, reproductive health decisionmaking, or veteran or military status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract." (Gov.

Code Sec. 12940, subd. (j)(1).) Plaintiff argues that he was subjected to harassment on the basis of sex and gender. (Opp., 5:1-5.) Taking the allegations as true that Defendants harassed women, Plaintiff cannot bring a claim for unlawful harassment as he is not a member of the protected class subject to harassment. (See Martin v. Board of Trustees of California State University (2023) 97 Cal.App.5th 149, 170.)

Plaintiff argues that under Government Code section 12923, subdivision (b), a single incident of harassment is sufficient to establish a hostile work environment. Government Code section 12923, subdivision (b) states that, "a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." (Gov.

Code, Sec. 12923, subd. (b).) However, even though, in certain circumstances, one incident may be enough, Plaintiff does not make that showing. Plaintiff argues that James and Charles made sexually charged statements about a sales representative, that John Doe's flirting with front desk staff makes Plaintiff and other employees uncomfortable, and John Doe sexually harasses female employees, but these are conclusory allegations that do not support Plaintiff's cause of action. (Compl., P.P. 34-40.)

Additionally, the allegations in the Complaint under the first cause of action provide no facts to support Plaintiff's cause of action. (Compl., P.P. 54-61.) Taking all allegations as true for purposes of demurrer, while inappropriate, they are not sufficient to meet the requirements of Government Code section 12923 or to establish pervasive conduct to alter the conditions of employment.

In opposition, Plaintiff contends that there were other instances regarding touching and a sexually explicit image. However, these allegations are not alleged in the pleading, and the Court is limited to what Plaintiff has alleged. Due to the lack of allegations to establish pervasiveness, Plaintiff is also unable to show that said conduct altered conditions of employment to constitute a hostile or abusive environment for him because of sex. (See Hughes, supra, 46 Cal.4th at p. 1043.) Thus, Plaintiff fails to allege sufficient facts to survive demurrer for his first cause of action. Thus, the Court sustains Defendants' demurrer as to Plaintiff's first cause of action.

Second Cause of Action--Retaliation "Section 12940, subdivision (h) makes it unlawful "[f]or any employer ... to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part [FEHA] ...." (Italics added.) To make out a prima facie case of retaliation under the statute, [plaintiff] had to show (1) he engaged in a protected activity, (2) the [defendant] subjected him to an adverse employment action, and (3) a causal link existed between the protected activity and the [defendant's] action. (Dinslage v.

City and County of San Francisco (2016) 5 Cal.App.5th 368, 380-381.) ") To meet his burden on this issue, "[a] plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented." [Citation.] The objective reasonableness of an employee's belief that his employer has engaged in a prohibited employment practice "must be measured against existing substantive law." (Ibid.)

Defendants argue that Plaintiff's second cause of action fails because he fails to allege any action that he engaged in protected activity under FEHA. The Complaint alleges that Plaintiff was fired because he complained of unsafe working conditions and sexual harassment. (Compl., P.P. 30, 32, 46.) As to unsafe working conditions, Government Code section 12940, subdivision (h), does not cover disclosures outside FEHA. Plaintiff argues that he reasonably believed that Defendants were engaging in sexual harassment conduct. Plaintiff relies on Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1043. However, as addressed above, Plaintiff does not allege a hostile work environment. Moreover, the relationship between John Doe and Jane Doe is that of clients, and not employees. (Compl., P.P. 36-40.) Thus, the Court sustains Defendants' demurrer as to the second cause of action.

Third Cause of Action--Failure to Prevent Discrimination, Harassment, or Retaliation Government Code section 12940, subdivision (k), states "[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring." (Gov. Code, Sec. 12940, subd. (k).) A claim for failure to prevent discrimination, harassment, or retaliation requires a viable discrimination, harassment, or retaliation claim. (Dickson v.

Burke Williams, Inc. (2015) 234 Cal.App.4th 1307, 1315, as modified on denial of reh'g (Mar. 24, 2015).) As a preliminary issue, Plaintiff's Complaint does not allege a viable cause of action for retaliation, harassment, or discrimination. Plaintiff's third cause of action is a derivative claim and for failure to allege sufficient facts, the third cause of action also fails. Thus, the Court sustains Defendant's demurrer as to the third cause of action.

Sixth Cause of Action--Intentional Infliction of Emotional Distress "Physical and emotional injuries sustained in the course of employment are preempted by the workers' compensation scheme and generally will not support an independent cause of action. [Citation.] Emotional injuries caused by workplace discipline, including termination, fall within this rule. [Citation.], 'when the misconduct attributed to the employer is actions which are a normal part of the employment relationship, such as demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances, an employee suffering emotional distress causing disability may not avoid the exclusive remedy provisions of the Labor Code by characterizing the employer's decisions as manifestly unfair, outrageous, harassment, or intended to cause emotional disturbance resulting in disability.'" (Yau v.

Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161; see Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 99 (Light).) While in limited circumstances in "the employment context where the conduct at issue violates FEHA and also satisfies the elements of the claim," a separate cause of action for intentional infliction of emotional may be sought. (Light, supra, 14 Cal.App.5th at p. 101.) As addressed in this ruling, Plaintiff's causes of action under FEHA are not viable causes of action.

Thus, as alleged, Plaintiff's cause of action for intentional infliction of emotional distress is barred by the California Workers' Compensation Act.

Plaintiff alleges that he suffered emotional distress because of the discrimination in the workplace and his wrongful termination. (Compl., P. 92.) Moreover, while Plaintiff argues that his cause of action for intentional infliction of emotional distress falls within the exception because of discrimination in the workplace, the Court is not persuaded. Plaintiff makes conclusory allegations and legal statements asserting that the exception applies, but they are not sufficient to survive demurrer. Thus, the Court sustains Defendant's demurrer as to the sixth cause of action.

Leave to Amend Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not "sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment"]; Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1037 ["A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment."]; Vaccaro v.

Kaiman (1998) 63 Cal.App.4th 761, 768 ["When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend."].) The burden is on the complainant to show the Court that the pleading can be successfully amended. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Plaintiff requests that the Court grant leave to amend. The Court will grant leave to amend and permit Plaintiff to amend his pleading.

Conclusion

Defendants James Raffini, Charles Raffini, New Clipper Aviation Charter, LLC, New Clipper Aviation, LLC, New Clipper Aviation Acquisition Vehicle I, LLC, and New Clipper Aviation Maintenance, LLC's demurrer is sustained as to the first, second, third, and sixth causes of action with leave to amend. Amended pleading is due by September 21, 2026. | Home -->)" -->