Aquino v. Alderkin, et al.

(36) Tentative Ruling

Re: Aquino v. Alderkin, et al. Superior Court Case No. 24CECG00181

Hearing Date: August 26, 2026 (Dept. 502)

Motion: by Defendants Jennifer Elderkin, erroneously sued as Jennifer Alderkin, and Elizabeth Pruitt Demurring to the Complaint

Tentative Ruling:

To sustain the demurrer to the third, twelfth, and fourteenth causes of action, with leave to amend. (Code Civ. Proc., § 430.010, subd. (e).)

Plaintiff is granted 10 days’ leave to file the First Amended Complaint. The time in which the First Amended Complaint can be amended will run from service by the clerk of the minute order. All new allegations in the First Amended Complaint are to be set in boldface type.

Explanation:

Defendants Jennifer Elderkin, erroneously sued as Jennifer Alderkin and Elizabeth Pruitt demur to the third, twelfth, and fourteenth causes of action for failure to state a claim.

Third Cause of Action – Harassment

“Under the FEHA, it is unlawful ‘[f]or an employer ... or any other person, because of ... national origin ... [or] age ... to harass an employee ....’ ([Gov’t. Code,] § 12940, subd. (j)(1).) To establish a prima facie case of a hostile work environment, [plaintiff] must show that (1) she is a member of a protected class; (2) she was subjected to unwelcome harassment; (3) the harassment was based on her protected status; (4) the harassment unreasonably interfered with her work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment. [Citation.]” (Ortiz v.

Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581, citations omitted.) “To constitute harassment, the conduct must be so objectively severe or pervasive as ‘ “to create a hostile or abusive working environment.” ’ [Citation.]” (Doe v. Department of Corrections & Rehabilitation (2019) 43 Cal.App.5th 721, 736 (Doe), citations omitted.)

“In addition, disability harassment is distinguishable from discrimination. [Citation.]” (Doe, supra, at p. 736.) “ ‘[D]iscrimination refers to bias in the exercise of official actions on behalf of the employer, and harassment refers to bias that is expressed or communicated through interpersonal relations in the workplace.’ ” [Citation.] ‘[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) 9

communicates an offensive message to the harassed employee.’ [Citation.] Put differently, ‘[h]arassment claims are based on a type of conduct that is avoidable and unnecessary to job performance. No supervisory employee needs to use slurs or derogatory drawings, to physically interfere with freedom of movement, to engage in unwanted sexual advances, etc., in order to carry out the legitimate objectives of personnel management. Every supervisory employee can insulate himself or herself from claims of harassment by refraining from such conduct. An individual supervisory employee cannot, however, refrain from engaging in the type of conduct which could later give rise to a discrimination claim. Making personnel decisions is an inherent and unavoidable part of the supervisory function.’ [Citation.]” (Id., at pp. 736-737, citations omitted.)

“Without making personnel decisions, a supervisory employee simply cannot perform his or her job duties. [Citations.]” (Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 869-870, citations omitted.) “[The] Legislature intended that commonly necessary personnel management actions such as hiring and firing, job or project assignments, office or work station assignments, promotion or demotion, performance evaluations, the provision of support, the assignment or nonassignment of supervisory functions, deciding who will and who will not attend meetings, deciding who will be laid off, and the like, do not come within the meaning of harassment.

These are actions of a type necessary to carry out the duties of business and personnel management. These actions may retrospectively be found discriminatory if based on improper motives, but in that event the remedies provided by the FEHA are those for discrimination, not harassment. Harassment, by contrast, consists of actions outside the scope of job duties which are not of a type necessary to business and personnel management. [Citation.]” (Id. at p. 870, emphasis added, citations omitted.)

Here, the complaint alleges that Elderkin and Pruitt told plaintiff to return to work on July 5, 2023, and the next day, they informed her position had been eliminated. (Compl., ¶ 17.) These are ordinary personnel management actions that do not constitute harassment. While conduct that overlaps with personnel management is not categorically excluded from a harassment claim, plaintiff fails to allege any other factual allegations against Elderkin and Pruitt.

Plaintiff argues that she has alleged sufficient facts to state a claim for harassment, because she alleges that defendants subjected her to an ongoing pattern of unwanted and offensive conduct that was so severe and pervasive so as to alter the conditions of her employment. However, plaintiff fails to allege what such unwanted and offensive conduct actually was.

Accordingly, the demurrer to the third cause of action is sustained.

Intentional Infliction of Emotional Distress

Defendants demur to the twelfth cause of action for intentional infliction of emotional distress on the grounds that plaintiff fails to allege extreme and outrageous conduct, and that the claim is barred by the exclusive remedy provisions of California’s workers’ compensation law. Plaintiff argues that she has sufficiently pled her cause of

action for IIED and that her claim is subject to an exception to the workers’ compensation preemption.

“Where the provisions of the workers' compensation system apply, an employer is liable without regard to negligence for any injury sustained by its employees arising out of and in the course of their employment. (Lab. Code, § 3600, subd. (a)(1).) The employee, in turn, is generally prohibited from pursuing any tort remedies against the employer or its agents that would otherwise apply. (Id., § 3602, subd. (a).)” (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96.)

“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. [Citations.]” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161, citations omitted.) “[W]hen 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.” (Ibid.)

However, a plaintiff may “pursue a claim for intentional infliction of emotional distress in the employment context where the conduct at issue violates FEHA and also satisfies the elements of the claim.” (Light, supra, at p. 101.) “ ‘The elements of the tort of intentional infliction of emotional distress 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....’ Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ [Citation.]” (Ibid., citations omitted.)

As explained above, the complaint fails to allege that defendants engaged in any specific conduct to give rise to a FEHA harassment cause of action, let alone the requisite extreme and outrageous conduct to give rise to an IIED cause of action. Thus, the complaint fails to state a claim for intentional infliction of emotional distress and the demurrer is sustained as to the twelfth cause of action.

Declaratory Relief

“A complaint for declaratory relief must demonstrate: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party. [Citation.] The ‘proper subjects’ of declaratory relief are set forth in Code of Civil Procedure section 1060 and other statutes. [Citations.] The ‘actual controversy’ requirement concerns the existence of present controversy relating to the legal rights and duties of the respective parties pursuant to contract (Code Civ. Proc., § 1060), statute or order.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410, citations omitted.) 11

Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment practice for an employer ... to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” (42 U.S.C. § 2000e-2(a)(1).) When “an individual proves a violation under section 2000e-2(m) [i.e. Title VII] . . . the court . . . may grant declaratory relief. . .” (42 U.S.C. § 2000e-5(g)(2)(B).) “Proof that an adverse employment decision was substantially motivated by discrimination may warrant a judicial declaration of employer wrongdoing.” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234.)

As a matter of law, individuals such as supervisors and coworkers who do not otherwise qualify as employers, employment agencies, labor organizations, or job training programs, may not be held individually liable for violations of Title VII. (42 U.S.C. § 2000e-2(a)-(d); 42 U.S.C. § 2000e(b).)

Defendants are alleged to be individuals as opposed to any of the statutory entities subject to Title VII. Declaratory relief afforded under Title VII is not an available remedy against individual defendants and thus, plaintiff has not alleged a proper subject of declaratory relief pertaining to the moving defendants. Accordingly, the demurrer to the fourteenth cause of action is sustained.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: lmg on 8-25-26. (Judge’s initials) (Date)

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