On 01/25/2018 FRANK DEPTO filed a Labor - Wrongful Termination lawsuit against ST PAUL THE APOSTLE CHURCH. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are HOWARD L. HALM and ROBERT B. BROADBELT. The case status is Pending - Other Pending.
Pending - Other Pending
Stanley Mosk Courthouse
Los Angeles, California
HOWARD L. HALM
ROBERT B. BROADBELT
ST. PAUL THE APOSTLE CHURCH ARCHDIOCESE O
DOES 1 TO 100
ROMAN CATHOLIC ARCHBISHOP OF LOS ANGELES
ST PAUL THE APOSTLE CHURCH
ARCHDIOCESE OF LOS ANGELES
SHEGERIAN CARNEY R. ESQ.
SHEGERIAN CARNEY RICHARD ESQ.
MEPPEN DEBRA ELLWOOD ESQ.
BELLONE ANTHONY J. ESQ.
MEPPEN DEBRA ELLWOOD
7/27/2018: REPLY TO PLAINTIFF'S OPPOSITION TO DEFENDANT'S DEMURRER TO PLAINTIFF'S COMPLAINT
8/17/2018: Minute Order
8/20/2018: CASE MANAGEMENT STATEMENT
8/28/2018: ORDER APPOINTING COURT APPROVED REPORTER AS OFFICIAL REPORTER PRO TEMPORE
9/4/2018: NOTICE OF CASE REASSIGNMENT AND OF ORDER FOR PLAINTIFF TO GIVE NOTICE
9/13/2018: NOTICE OF CASE REASSIGNMENT
10/15/2018: Amendment to Complaint (Fictitious/Incorrect Name)
12/5/2018: Demurrer - without Motion to Strike
12/20/2018: Stipulation and Order
5/30/2019: Notice of Ruling
4/16/2018: CASE MANAGEMENT STATEMENT
4/16/2018: DEFENDANTS ROMAN CATHOLIC ARCH BISHOP OF LOS ANGELES, A CORPORATION SOLE, ST. PAUL THE APOSTLE CHURCH, AND RICK BILLUPS' DEMURRER TO PLAINTIFF'S COMPLAINT
4/6/2018: NOTICE OF CASE MANAGEMENT CONFERENCE AND ORDER TO SHOW CAUSE HEARTNG
3/6/2018: NOTICE AND ACKNOWLEDGMENT OF RECEIPT- CIVIL
2/20/2018: PROOF OF SERVICE SUMMONS
Complaint (3rd); Filed by Frank Depto (Plaintiff)Read MoreRead Less
Amended Complaint (3rd); Filed by Frank Depto (Plaintiff); Frank Depto (Plaintiff)Read MoreRead Less
at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) (to Plaintiff's Second Amended Complaint) - HeldRead MoreRead Less
at 00:00 AM in Department 53, Robert B. Broadbelt, Presiding; Case Management Conference - Held - ContinuedRead MoreRead Less
Notice of Ruling; Filed by Rick Billups (Defendant); St Paul The Apostle Church (Defendant); Roman Catholic Archbishop Of Los Angeles (Defendant)Read MoreRead Less
Order (re: Defendants' Demurrer to Plaintiff's SAC); Filed by ClerkRead MoreRead Less
Minute Order ( (Hearing on Demurrer - with Motion to Strike (CCP 430.10) to P...)); Filed by ClerkRead MoreRead Less
Order Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by ClerkRead MoreRead Less
at 08:30 AM in Department 53, Robert B. Broadbelt, Presiding; Hearing on Demurrer - with Motion to Strike (CCP 430.10) - Not Held - Rescheduled by PartyRead MoreRead Less
Reply (In Support Of Defendants' Demurrer); Filed by Rick Billups (Defendant); Archdiocese Of Los Angeles (Defendant); St Paul The Apostle Church (Defendant) et al.Read MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Frank Depto (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
Proof of Service (not Summons and Complaint); Filed by Frank Depto (Plaintiff)Read MoreRead Less
OSC-Failure to File Proof of Serv; Filed by ClerkRead MoreRead Less
NOTICE OF CASE MANAGEMENT CONFERENCERead MoreRead Less
Notice of Case Management Conference; Filed by ClerkRead MoreRead Less
ORDER TO SHOW CAUSE HEARINGRead MoreRead Less
SUMMONSRead MoreRead Less
PLAINTIFF FRANK DEPTO'S COMPLAINT FOR DAMAGES FOR: (1) BREACH OF EXPRESS ORAL CONTRACT NOT TO TERMINATE EMPLOYMENT WITHOUT GOOD CAUSE; ETCRead MoreRead Less
Complaint; Filed by Frank Depto (Plaintiff)Read MoreRead Less
Case Number: BC691437 Hearing Date: November 20, 2020 Dept: 53
Superior Court of California
County of Los Angeles – Central District
st. paul the apostle church
November 20, 2020
[Tentative] Order RE:
demurrer to plaintiff’s third amended complaint
MOVING PARTIES: Defendants Roman Catholic Archbishop of Los Angeles, a Corporate Sole, St. Paul the Apostle Church, and Rick Billups
RESPONDING PARTY: Plaintiff Frank Depto
Demurrer to Plaintiff’s Third Amended Complaint
The court considered the moving, opposition, and reply papers.
Plaintiff Frank Depto (“Plaintiff”) filed this action on January 25, 2018 against defendants Roman Catholic Archbishop of Los Angeles, A Corporation Sole (erroneously sued as Archdiocese of Los Angeles) (the “Archdiocese”), St. Paul the Apostle Church (“St. Paul”), and Rick Billups (“Billups”) (collectively, “Defendants’). The operative Third Amended Complaint (“TAC”) was filed on June 18, 2019 and alleges causes of action for (1) wrongful termination of employment in violation of public policy, (2) violation of Labor Code section 1102.5, and (3) intentional infliction of emotional distress.
Defendants now demur to the third cause of action for intentional infliction of emotional distress on the ground that it fails to state facts sufficient to constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) Plaintiff opposes the demurrer.
A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. ((Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff's proof need not be alleged.” ((C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. ((Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” ((Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)
In the TAC, Plaintiff alleges the following. Plaintiff was employed by Defendants as a facility manager at Defendants’ school beginning on or about November 14, 2014. (TAC, ¶ 8.) Defendants persuaded Plaintiff to join Defendants and knew that Plaintiff’s taking the job would cause a conflict with Plaintiff’s pension from his long career in construction. (Ibid.) After lengthy negotiations, the terms of Plaintiff’s employment were approved by Plaintiff’s pension and Plaintiff could start working. (TAC, ¶ 9.) Plaintiff is certified with the Occupational Safety and Health Administration (“OSHA”), which subjects him to both criminal and civil liability if he knowingly partakes in an OSHA violation. (TAC, ¶ 11.) Defendants were aware of Plaintiff’s certifications. (Ibid.)
In or around November 2016, Plaintiff had a meeting with his supervisor and principal of the school, Billups, regarding installation of a kiln in the closet of the art classroom. (TAC, ¶ 14a.) Depto informed Billups of various safety issues with installing the kiln, including that installing it in the closet would pose a significant fire hazard and an OSHA violation. (TAC, ¶ 14b.) On or about November 21, 2016, Plaintiff approached Billups and told him about their need to comply with OSHA regarding the location of the kiln. (TAC, ¶ 14d.) Plaintiff suggested other locations and reiterated that installing the kiln in the closet of the art classroom would be a safety hazard. (Ibid.) In or around early February 2017, Billups again informed Billups about the issues with installing the kiln in the closet. (TAC, ¶ 14i.) After this, Billups started being very short with Plaintiff and avoided him at every chance he got. (TAC, ¶ 14j.) Billups also began to say that Plaintiff’s emails were not professional, making Plaintiff feel anxious and uneasy, and began to exclude Plaintiff from meetings with vendors. (Ibid.)
On or about February 21, 2017, Plaintiff emailed Billups regarding the installing of the kiln. (TAC, ¶ 14k.) On or about March 6, 2017, Plaintiff again emailed Billups regarding the kiln. (Ibid.) Billup’s treatment of Plaintiff caused Plaintiff great anxiety and uneasiness because, if the kiln were installed according to Billups’s requests, the manufacturers’ recommendations would be ignored and a permit for the kiln would never be granted. (TAC, ¶ 14l.) This would subject Defendants to criminal liability, and, because Plaintiff is OSHA certified, Plaintiff would be personally criminally and civilly liable for any death and/or serious bodily injury that was almost certain to have happened if Billups’ requests were followed. (Ibid.)
On or about May 5, 2017, Plaintiff met with Billups and others to discuss changes to Plaintiff’s job description, which included the new responsibility of performing electrical, plumbing, HVAC, and carpentry tasks. (TAC, ¶ 14o.) Plaintiff informed his supervisors that he could not do that work, because he would lose his pension. (Ibid.) Plaintiff stated that he believed that his sudden job change was in retaliation for his continued complaints about kiln safety. (Ibid.) On or about May 22, 2017, Plaintiff informed the school that he was willing to continue to work under the original terms of his contract and that he was promised employment until retirement. (TAC, ¶ 14q.) In or around late June 2017, Plaintiff was asked to voluntarily resign, but he refused. (TAC, ¶ 15b.) Plaintiff’s last day was July 1, 2017. (Ibid.)
Third Cause of Action: Intentional Infliction of Emotional Distress
To plead a claim for intentional infliction of emotional distress (“IIED”), plaintiff must allege: “(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.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050). “[L]iability [for IIED] does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities, but only to conduct so extreme and outrageous as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” (Alcorn v. Anbro Eng’g, Inc. (1970) 2 Cal.3d 493, 499, fn.5 [internal quotations omitted].) “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society.” (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80.) If personnel management activity is alleged to be motivated by discrimination, “the remedy is a suit against the employer for discrimination” and not a claim for intentional infliction of emotional distress. (Ibid.)
In its May 30, 2019 order, the court sustained Defendants’ demurrer to the sixth cause of action for IIED in Plaintiff’s Second Amended Complaint because the Second Amended Complaint failed to allege extreme or outrageous conduct sufficient to state an IIED claim. (Order, filed May 30, 2019, pp. 8:27-9:2.)
Here, Defendants argue that Plaintiff again fails to allege extreme or outrageous conduct because Defendants’ alleged conduct consists of personnel management activity. Defendants point out that there are no allegations that Defendants actually made Plaintiff install the kiln, that the kiln was actually installed, that Plaintiff was exposed to or charged with any criminal liability, or that he lost his pension. Defendants contend that the alleged outrageous conduct consists of a change in Plaintiff’s job duties and termination, which Plaintiff alleges was in retaliation for complaining about the kiln, and that Defendants’ alleged conduct amounts to personnel management activity rather than outrageous conduct.
In opposition, Plaintiff emphasizes his allegations of Defendants’ reactions to Plaintiff’s reasonable concerns about safety and OSHA violations, particularly Plaintiff’s potential personal criminal and civil liability. Plaintiff contends that the allegations that Defendants ignored him, ridiculed his emails, avoided him at all costs, disregarded his reasonable concerns about personal liability, and changed his job duties in a manner to deprive Plaintiff of his significant pension amounts to extreme and outrageous conduct. Plaintiff contends that a jury could find that Defendants’ knowingly exposing Plaintiff to the stress of potential criminal and civil liability constitutes outrageous conduct.
Plaintiff also cites Ferretti v. Pfizer Inc. (N.D. Cal. 2012) F.Supp.2dd 1017 for the proposition that termination based on an employee’s refusal to engage in illegal activity could form the basis for an IIED claim if the plaintiff alleges that he or she suffered severe and extreme emotional distress. Plaintiff points to allegations in the TAC that Plaintiff has suffered severe and extreme emotional distress. (TAC, ¶¶ 33-54.) However, Ferretti does not stand for this proposition. The federal court in Ferretti found that the plaintiff failed to allege facts sufficient to support the extreme or outrageous conduct element of an IIED claim and also noted that the plaintiff’s allegations of suffering severe emotional distress were conclusory. (Ferretti, F.Supp.2d at p. 1029.)
Here, Plaintiff has not alleged that Billups actually ordered Plaintiff to install the unsafe kiln or that the unsafe kiln was ever installed. Plaintiff does not allege that he was actually personally exposed to or charged with any criminal or civil liability. Plaintiff does not allege that he lost his pension. Plaintiff’s new allegations in his TAC are essentially allegations that (1) Plaintiff is certified with OSHA and that Defendants were aware of Plaintiff’s certifications (TAC, ¶ 11), and (2) Plaintiff felt anxious and uneasy about Defendants’ treatment of Plaintiff especially in light of possible criminal and civil liability “for any death and/or serious bodily injury that was almost certain to have happened if Billups’ requests were followed” (TAC, ¶ 14l). The court finds that Plaintiff has failed to allege facts sufficient to state a claim for IIED because Plaintiff’s allegations fail to establish any extreme and outrageous conduct by Defendants.
The burden is on the plaintiff “to articulate how it could amend its pleading to render it sufficient.” (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.) To satisfy that burden, a plaintiff “must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Here, the court already gave Plaintiff leave to file a Third Amended Complaint to give him an opportunity to allege facts establishing extreme and outrageous conduct by Defendants. Plaintiff has failed to show how he could amend the TAC to state a cause of action for IIED. Therefore, the court sustains Defendants’ demurrer to the third cause of action for IIED without leave to amend.
For the reasons set forth above, the court sustains Defendants’ demurrer to the third cause of action for intentional infliction of emotional distress without leave to amend.
The court orders Defendants to file and serve their answer to the Third Amended Complaint within 20 days of the date of this order.
The court orders Defendants to give notice of this order.
IT IS SO ORDERED.
DATED: November 20, 2020
Robert B. Broadbelt III
Judge of the Superior Court
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