MICHAEL RATHBUN ET AL VS COUNTY OF LOS ANGELES ET AL

Tentative Rulings

Case Number: BC526951    Hearing Date: January 25, 2021    Dept: 61

Defendant Michael Camacho’s Demurrer to the Complaint is SUSTAINED without leave to amend as to the second cause of action for FEHA Harassment, SUSTAINED with leave to amend as to the sixth and eighth causes of action alleged by Plaintiff Michael Rathbun, and OVERRULED as to the sixth and eighth causes of action alleged by Plaintiff James Sexton.

Defendant Michael Camacho’s Motion to Strike Portions of the Complaint is DENIED.

1. DEMURRER

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“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. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

1. FEHA HARASSMENT — SECOND CAUSE OF ACTION

Camacho demurrers to the second cause of action for FEHA harassment on the grounds that the conduct alleged of Camacho is not based on a protected characteristic and is not severe or pervasive. (Demurrer at pp. 6–7.) Plaintiffs in opposition agree that they do not wish to prosecute their harassment claims against Camacho. (Opposition at p. 3.)

The demurrer is therefore SUSTAINED as to the second cause of action without leave to amend.

1. BANE ACT — SIXTH CAUSE OF ACTION

Camacho demurrers to Plaintiffs’ Bane Act claim on the procedural grounds that it was not included in their government tort claim, and the substantive grounds that it alleges no violation of a civil right or a credible threat. (Demurrer at pp. 8­–9.)

The first argument is without merit, as Plaintiffs filed a government claim referencing Camacho and the Bane Act on August 13, 2013. (Complaint Exh. 5.)

The Bane Act applies when one “interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state.” (Civ. Code § 52.1, subd. (b).) Camacho argues that the Complaint merely alleges that Camacho used “strained and heated language” during work disagreements, and that the Bane Act was intended as a weapon against hate crimes, not for “at-work interactions between Sheriff’s deputies.” (Demurrer at pp. 8–9.)

This is not an accurate characterization of the Complaint. Plaintiffs allege that Camacho, at the behest of Plaintiffs’ superiors, participated in a concerted effort of retaliation for Plaintiffs’ whistleblowing activities by threatening Sexton with physical harm “in order to silence Plaintiffs and cover up the various illegal activities reported.” (Complaint ¶¶ 171–80.) Whether these alleged threats of violence were credible is a question of fact not properly resolved on demurrer.

However, Camacho is correct on one issue: the Complaint alleges no conduct by Camacho directed against Plaintiff Rathbun, as opposed to Sexton. (Demurrer at p. 10.)

The demurrer is therefore SUSTAINED as to the sixth cause of action as brought by Rathbun against Camacho, and OVERRULED as to the same cause of action brought by Sexton.

1. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS — EIGHTH CAUSE OF ACTION

Camacho argues that Plaintiffs’ claim for intentional infliction of emotional distress (IIED) fails because the conduct alleged of Camacho does not rise to the “outrageousness” required by the tort, and because any claim is preempted by the workers compensation bargain. (Demurrer at pp. 9–11.)

Once more, the Complaint does not allege that Camacho directed any conduct toward Rathbun, and the demurrer is accordingly SUSTAINED as to Rathbun’s eighth cause of action directed toward Camacho.

The elements for a claim of intentional infliction of emotional distress (IIED) are “(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's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Miller v. Fortune Commercial Corporation (2017) 15 Cal.App.5th 214, 228–29; see also Stoiber v. Honeychuck (“Stoiber”) (1980) 101 Cal.App.3d 903, 921.) In order for conduct to be considered “outrageous” for the purposes of an IIED claim, it “must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 533, internal quotation marks omitted.) Moreover, the emotional distress required for an IIED claim must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.)

Once more Camacho’s argument as to the outrageousness of the conduct alleged against him rests on a mischaracterization of the Complaint’s allegations as “at most a workplace disagreement between Sexton and Deputy Camacho.” (Demurrer at p. 10.) As explained above, the Complaint alleges that Camacho engaged in a pattern of threatening behaviors directed at Sexton in retaliation for Sexton’s attempts to redress Camacho’s prior incidents of violence, and (at the direction of superiors) with the intent to prevent future reports of misconduct. “Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability.” (Cross v. Bonded Adjustment Bureau (1996) 48 Cal.App.4th 266, 283.) Such is the case here.

Camacho also argues that the the IIED claim is preempted by the workers compensation system, as such compensation is “the sole and exclusive remedy of the employee or his or her dependents against the employer.” (Lab. Code § 3602, subd. (a).)

Camacho’s argument is without merit. Workers compensation exclusivity applies to torts that comprise “a normal part of the employment relationship.” (Livitsanos v. Superior Court (1992) 2 Cal.4th 744, 756.) This means things like “demotions, promotions, criticism of work practices, and frictions in negotiations as to grievances.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160.) It does not mean threats of violence in retaliation for whistleblowing activity.

The demurrer is accordingly SUSTAINED with leave to amend as to Rathbun’s eighth cause of action against Camacho, and OVERRULED as to Sexton’s claim.

1. MOTION TO STRIKE

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1)). The notice of motion to strike a portion of a pleading shall quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count or defense. (California Rules of Court Rule 3.1322.)

The grounds for a motion to strike shall appear on the face of the challenged pleading or form any matter of which the court is required to take judicial notice. (Code Civ. Proc., § 437(a)). The court then may strike out any irrelevant, false, or improper matter inserted in any pleading and strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436.) When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend. (Perlman v. Municipal Court (1979) 99 Cal.App.3d 568, 575.)

Camacho moves to strike the prayer for punitive damages. (Motion at pp. 6–10.)

Punitive damages are allowed in non-contract cases when a defendant is guilty of “oppression, fraud, or malice . . . .” (Civ. Code § 3294.) The terms are defined as:

1. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

2. “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.

3. “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Something more than the mere commission of a tort is always required for punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894.) Proof of negligence, gross negligence, or recklessness is insufficient to warrant an award of punitive damages. (Dawes v. Sup.Ct. (Mardian) (1980) 111 Cal.App.3d 82, 88–89.) Punitive damages may be recovered in an action for negligence or other nonintentional torts if the plaintiff pleads and proves that the defendant acted with the state of mind described as “conscious disregard” of the potential dangers to others. (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299.) When malice is based on a defendant’s conscious disregard of Plaintiff’s rights, the conduct must be both despicable and willful. (College Hospital v. Superior Court (1994) 8 Cal.4th 794, 713 (“College Hospital”).)

The allegations against Camacho are sufficient to maintain a prayer for punitive damages against him. As explained above, it is alleged that Sexton wrote up Camacho for assaulting an informant, Camacho, at the direction of superiors, threatened physical harm against Sexton on a continuing basis both as a retaliatory measure and in an attempt to deter him from further whistleblowing. This conduct is sufficient to support a claim for punitive damages.

The motion to strike is DENIED.