Civil Tentative Rulings

November 06, 2026

The following are the tentative rulings for cases calendared before Judge John R. Mayne in Department 21:

CV-25-001961 – NUNO, PAUL vs SUBARU OF AMERICA INC – a) Plaintiff’s Motion to be Relieved as Counsel – DENIED without prejudice; b) Plaintiff’s Motion to be Relieved as Counsel – DENIED without prejudice.

a) The unopposed motion is DENIED without prejudice. Forms MC-051, MC-052, and MC-053 expressly require the “name of withdrawing attorney.” The filed papers list only the firm Quill & Arrow, LLP, and fail to list the name(s) of the withdrawing attorney(s).

Further, counsel did not attend the settlement conference and the trial is set for November 17, 2026. The matter is also set for an order to show cause why sanctions should not be issued today. The Court lacks an adequate basis to grant the motion given the proximity to trial.

On October 15, 2026, Quill & Arrow LLP filed a motion to be relieved as counsel for Plaintiff Camille Nuno. There is no opposition in the Court file. The notice of motion and motion identifies the client as Plaintiff Camille Nuno, but the proposed order lists the client as Paul Nuno.

b) The unopposed motion is DENIED without prejudice. Forms MC-051, MC-052, and MC-053 express require the “name of withdrawing attorney.” The filed papers list only the firm Quill & Arrow, LLP, and fail to list the name(s) of the withdrawing attorney(s).

On October 20, 2026, Quill & Arrow LLP filed a motion to be relieved as counsel for Plaintiff Paul Nuno. There is no opposition in the Court file.

Further, counsel did not attend the settlement conference and the trial is set for November 17, 2026. The matter is also set for an order to show cause why sanctions should not be issued today. The Court lacks an adequate basis to grant the motion given the proximity to trial.

CV-25-004154 – GARRETTSTEINMAN, DANIEL PAUL vs SIERRA CLUB – Defendants‘ Motion for Summary Judgment Regarding Plaintiff’s Sole Cause of Action for Quantum Meruit; or in the Alternative Motion for Summary Adjudication of Plaintiff’s Claims for Legal Fees and/or Costs – HEARING REQUIRED.

The Court does not have the opposition at the time of this writeup.

If the merits are reached, the Court has questions about whether it should consider interest on the amount later paid to Plaintiff and what precisely to do about the costs check and continued violations of its contact orders.

The Court intends to have an open portion and a closed portion of the hearing.

CV-26-004140 – GEMPESAW, FEDERICO J vs SUTTER VALLEY HOSPITALS – a) Defendant Sutter Valley Hospital’s Demurrer to Plaintiff’s First Amended Complaint – SUSTAINED without leave to amend; b) Defendant Sutter Valley Hospital’s Motion to Strike Portions of Plaintiff’s First Amended Complaint - GRANTED with leave to amend.

a) Defendant’s demurrer to the First Amended Complaint’s eleventh cause of action for intentional infliction of emotional distress is SUSTAINED without leave to amend. The Court will modify and sign the proposed order. Defendant to give notice. (Code Civ. Proc., § 1019.5.)

On September 4, 2026, Defendant filed a demurrer to Plaintiff’s eleventh cause of action for intentional infliction of emotional distress pursuant to Code of Civil Procedure section 435 on the grounds that the First Amended Complaint (“FAC”) fails to state a claim. Defendant contends that the claim fails because (1) the FAC does not allege outrageous conduct and/or (2) the FAC does not allege severe emotional distress, and/or (3) intentional infliction of emotional distress claims are preempted by the Workers’ Compensation Act. There is no opposition in the Court file.

“A prima facie case requires (1) outrageous conduct by the defendant, (2) intention to cause or reckless disregard of the probability of causing emotional distress, (3) severe emotional suffering and (4) actual and proximate causation of the emotional distress.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155.) “Ordinarily mere insulting language, without more, does not constitute outrageous conduct. The Restatement view is that liability ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities . . . . There is no occasion for the law to intervene . . . where some one’s feelings are hurt.’ [Citation.]” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 946 disapproved of on other grounds by White v. Ultramar, Inc. (1999) 21 Cal.4th 563.)

The FAC fails to plead outrageous conduct sufficient to state a cause of action of intentional infliction of emotional distress. For example, paragraph 133 of the FAC alleges that Defendant’s conduct included making age-based discriminatory comments and move to a lesser position, questioning and undermining Plaintiff’s protected leave rights, retaliating against Plaintiff for reporting unsafe working conditions and filing OSHA complaints, issuing unwarranted disciplinary write-ups, and ultimately terminating his employment. Such conduct does not rise to the level of extreme and outrageous conduct as a matter of law. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80 [“An essential element of such a claim is a pleading of outrageous conduct beyond the bounds of human decency.”].)

Leave to Amend

Plaintiff provided no opposition. As such, it does not appear that Plaintiff can plead sufficient facts to state a cause of action for intentional infliction of emotional distress. Leave to amend is DENIED.

b) The motion to strike is GRANTED with leave to amend. The Court STRIKES from the First Amended Complaint the requested portions of paragraphs 59, 88, 96, 124, 138, and paragraph 5 of Prayer for Relief. The Court will sign the proposed order. Defendant to give notice. (Code Civ. Proc., § 1019.5.)

On August 28, 2026, Defendant filed a motion to strike portions of the First Amended Complaint related to Plaintiff’s prayer for punitive damages. On October 22, 2026, Plaintiff opposed. On October 28, 2026, Defendant replied.

Punitive damages are available “where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice.” (Civ. Code, § 3294.) “Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim.” (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166.) “ ‘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.” (Civ. Code, § 3294.) “ ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.” (Id.)

“[A]n employer shall not be liable for punitive damages based on its employee’s acts, ‘unless the employer [1] had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or [2] authorized or ratified the wrongful conduct for which the damages are awarded or [3] was personally guilty of oppression, fraud, or malice.’ Moreover, ‘[w]ith respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.’ [Citation.]” (Nargizyan v. State Farm General Ins. Co. (2026) 120 Cal.App.5th 581, 604, as modified (May 14, 2026), review denied (Aug. 12, 2026).)

“The term [‘managing agent’] is subject to a narrow construction that limits corporate liability for punitive damages to only those employees who ‘exercise substantial discretionary authority over decisions that ultimately determine corporate policy.’ [Citation.]” (Id.)

As an initial matter, Plaintiff does not oppose striking paragraph 59 of the FAC because it concerns the FMLA interference claim.

The FAC fails to plead sufficient facts to show that Steve Romero exercises substantial discretionary authority over decisions that ultimately determine Defendant’s corporate policy. Instead, the FAC merely alleges that Mr. Romero had the authority to write Plaintiff up. The FAC alleges that Mr. Romero made comments warning that Plaintiff’s leave could be denied and urging Plaintiff to move to a different position, but such allegations are not sufficient to plead that Mr. Romero had authority over Plaintiff’s leave or work schedule, let alone authority to make decisions regarding policies of the company as a whole. While his job title is generically that of a “Director,” there are no allegations that Mr. Romero is a director of the company as a whole. The instant matter is distinguishable from Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442. The managing agent in Colucci “had substantial discretionary authority over daily store operations, which led to the ad hoc formulation of policy” and made “decisions [that] affected company policy over a significant aspect of [Defendant’s] business.” (Colucci v. T-Mobile USA, Inc. (2020) 48 Cal.App.5th 442, 452.) Here, the FAC is devoid of allegations that Mr. Romero made decisions that affected Defendant’s company policy or business as a whole.

The FAC also fails to plead sufficient facts regarding malice or oppression. Plaintiff relies on Colucci, supra, which is again distinguishable. The defendant in Colucci attempted to hide its reason for terminating the plaintiff and concocted a false explanation. Here, there is no allegation that Defendant attempted to fabricate a reason to terminate Plaintiff or hide its reason. Instead, the FAC alleges that Defendant cited an error regarding available leave hours as a basis for Plaintiff’s termination. Here, Defendant was “forthright about its reason for terminating the plaintiff,” which does not support an inference of malice or oppression. (Colucci, supra 48 Cal.App. at 455.)

Leave to Amend

The Court is skeptical that leave to amend is likely to cure the apparent defects. Nonetheless, given the preference for leave to amend and the fact that Plaintiff might have the ability to make these claims, the Court grants leave to amend.

The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:

CV-24-003049 – WESTERN HILLS WATER DISTRICT vs WORLD INTERNATIONAL LLC – Plaintiff’s Motion to Lift Stay and to Reset Hearing Dates on Motions to Compel – Continued on the Court’s Motion to November 12, 2026, at 8:30am in Department 22.

PR-25-000323 – ESTATE OF FARLEY, WALLACE ALLAN – Objector’s Motion to Quash Deposition Subpoena for Business Records or in the Alternative for a Protective Order; and for Sanctions Against Samantha Ann Farley - DROPPED due to settlement of the case as set forth in counsel’s October 30, 2026, declaration on file with the Court.  The Court notes a motion for determination of good faith settlement is scheduled for December 8, 2026.

The following are the tentative rulings for cases calendared before Judge Clifford Tong in Department 23:

CV-21-003804 – SINGH, SIMARJIT vs MANN TRUCK & TRAILER REPAIR INC – Plaintiff’s Motion to Compel Attendance and Testimony of Parties and Defense Expert Witness Bill Focha at Deposition; and for Monetary Sanctions – GRANTED.

Written extension of discovery

The Court finds that the parties’ June 3, 2026, written stipulation satisfies Code Civ. Proc. § 2024.060 and effectively extended the discovery deadlines as described therein. All affected parties consented in writing to calculate trial-related deadlines, including ordinary and expert discovery cutoffs, from the continued trial date. The parties’ stipulation contemplated a continuance to October 27, 2026, or a later date convenient to the Court; the Court thereafter set trial for December 15, 2026. Read together with the Court’s subsequent order setting a new trial date, the stipulation supplies an objectively ascertainable extended date for each category of discovery through the incorporated statutory time periods. Code Civ. Proc. § 2024.060 does not require filing or entry of the agreement as an order. Under these circumstances, the fact that the contemplated continuance motion became unnecessary and was not filed does not defeat the agreed discovery extension. Therefore, the Court finds that the ordinary and expert discovery deadlines run from the December 15, 2026, trial date. As a result, Defendants and their retained expert have failed to appear for properly noticed depositions, and their discovery-cutoff objections to the same are overruled.

Independent alternative ground: reopening discovery

Further, even assuming arguendo that the June 3 stipulation did not satisfy the requirements of § 2024.060, the Court finds independent grounds to grant Plaintiff’s alternative request under Code Civ. Proc. § 2024.050 to reopen discovery to permit the requested depositions and related enforcement motions within the statutory periods measured from December 15, 2026. In that regard, the Court has considered the factors set forth in § 2024.050(b) and finds that good cause has been demonstrated under that section, even if the stipulated discovery extension were ineffective.

Deposition deadlines

Therefore, Defendants Nirmal Singh Mann and Sakinder Singh Mann shall appear and testify at their respective depositions, to be completed no later than November 16, 2026. This is the ordinary discovery cutoff under section 2024.020(a), measured from the December 15 trial date and adjusted under Code Civ. Proc. § 2016.060.

In addition, Defendants shall produce their designated expert, Bill Focha, for deposition no later than November 30, 2026, the expert discovery cutoff under Code Civ. Proc. § 2024.030 as measured from the December 15 trial date.

Counsel shall promptly confer and cooperate in selecting dates that permit completion, not merely commencement, by these deadlines.

Monetary sanctions

The Court further finds that Plaintiff is entitled to an award of monetary sanctions in the amount of $1,620 against defense counsel, Evan Nelson, payable to Plaintiff’s counsel. (Code Civ. Proc. §§ 2025.450(g), 2024.050(c), 2023.010 et seq., 2023.030 et seq.)

Defense counsel unsuccessfully pursued his clients’ opposition to the instant motion without substantial justification, and no circumstances make sanctions unjust. On the contrary, the Court notes that following his substitution, defense counsel represented that he would check deposition availability, requested proposed September dates, produced the entity defendant’s PMQ in September, and continued to communicate about the expert’s availability before adopting a contrary position in October. Counsel’s own declaration acknowledges that he “accommodated” a deposition and responses to written discovery through September. Those actions are inconsistent with Defendants’ later position that no further discovery could proceed absent a court order reopening discovery. Counsel’s characterization of the earlier discovery as an accommodation does not adequately explain his reversal after Plaintiff had deferred discovery in reliance on the stipulation and scheduling exchanges. Lastly, defense counsel’s unsubstantiated refusal to complete the subject discovery under the circumstances unnecessarily required Plaintiff to seek judicial relief herein. This conduct weighs against Defendants’ claim that the present opposition was substantially justified and supports the Court’s determination that sanctions are appropriately awarded against defense counsel herein.

CV-25-002967 – THE PEOPLE OF THE STATE OF CALIFORNIA vs GARCIA, MARIO JR – a) Plaintiff’s Motion to Compel Response to Form Interrogatories, Set No. One – DENIED, without prejudice; b) Plaintiff’s Motion to Compel Response to Request for Admissions – DENIED, without prejudice; c) Plaintiff’s Motion to Compel Response to Request for Inspection of Documents and Tangible Things – DENIED, without prejudice.

a-c) DENIED, without prejudice.

It appears the Court still has not acquired jurisdiction over Mr. Garcia herein. The second Proof of Service of Summons submitted by Petitioner again demonstrates an attempt to serve process pursuant to Code Civ. Proc. § 415.30, but there is no indication that such service was completed by Mr. Garcia’s return of the acknowledgement form.

CV-25-009992 – PAYNE, YOLANDA vs SERRANO, MARIO – Plaintiff’s Motion for Leave to File First Amended Complaint - GRANTED.

The Court has broad discretion in this area and there is a strong policy in favor of liberal allowance of amendments. (Code Civ. Proc. §§ 473(a)(1), 576.) While the Court questions the sufficiency of Plaintiff’s showing pursuant to Cal. Rules of Ct., rule 3.1324, Defendant has not demonstrated prejudice which necessitates denial of the proposed amendment at this stage. In addition, the Court concludes that Defendant’s arguments regarding the sufficiency of the proposed amended pleading should be reserved for a future formal challenge in that regard.

Plaintiff shall submit the First Amended Complaint for filing within 10 days.

Plaintiff shall serve and submit a revised form of order consistent with the Court’s ruling herein. (Cal. Rules of Ct., rule 3.1312.)

The following are the tentative rulings for cases calendared before Judge David I. Hood in Department 24:

CV-22-005890 – SANCHEZ, ABRAHAM RUBIO vs MANULIFE INVESTMENT MANAGEMENT FARMLAND MANAGEMENT SERVICES INC – Defendants, Green Valley Ag Services, Inc. and Manulife Investment Management Farmland Management Services, Inc.’s Petition to Confirm Arbitration Award and to Enter Judgment Against Plaintiff, Abraham Rubio Sanchez – GRANTED, unopposed.

Code of Civil Procedure section 1286 provides that, upon a duly served and filed petition, the Court shall confirm an arbitration award unless it corrects or vacates the award or dismisses the proceeding. A petition to confirm must set forth or attach the arbitration agreement, identify the arbitrator, and set forth or attach the award and any written opinion. Code Civ. Proc., §§ 1285, 1285.4. If the award is confirmed, judgment must be entered in conformity with the award. (Code Civ. Proc., § 1287.4; Jones v. Kvistad (1971) 19 Cal.App.3d 836; Louise Gardens of Encino Homeowners' Assn., Inc. v. Truck Ins. Exchange, Inc. (2000), 82 Cal.App.4th 648.).

Defendants have satisfied the statutory requirements for confirmation. The petition identifies the arbitration agreement and arbitrator and includes the written award. No opposition, petition to vacate, or request to correct the award has been filed. Accordingly, the Court confirms the May 16, 2026, arbitration award issued by retired Judge Howard Broadman.

The confirmed award provides that: (1) Defendants’ motion for nonsuit is granted;(2) Plaintiff Abraham Rubio Sanchez is not an “aggrieved employee” under Labor Code section 2699 et seq. for any of the Labor Code violations alleged in the Complaint;(3) Plaintiff’s individual wage-and-hour claims, including the individual component of his PAGA claim, are dismissed with prejudice; and (4) The order constitutes a final arbitration award.

Judgment shall therefore be entered in conformity with the confirmed award.

A plaintiff has standing to maintain a PAGA action only if the plaintiff is an “aggrieved employee,” meaning a person who was employed by the alleged violator and against whom one or more of the alleged Labor Code violations was committed. (Lab. Code, § 2699.)

Compelling the individual component of a PAGA claim to arbitration does not, standing alone, eliminate a plaintiff’s standing to pursue non-individual PAGA claims in court. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104.) However, when the arbitrator determines that the plaintiff is not an aggrieved employee, and that determination is confirmed and reduced to judgment, the plaintiff is bound by the determination and lacks standing to continue litigating the non-individual PAGA claim. (Adolph v Uber Technologies, supra; Betanco v. Living Spaces Furniture, LLC (2026) 121 Cal.App.5th 411, review denied (Sept. 16, 2026).

Here, the arbitrator found that Plaintiff failed to prove the alleged Labor Code violations and expressly determined that Plaintiff is not an aggrieved employee. The confirmed award therefore forecloses Plaintiff from relitigating his aggrieved-employee status. Because Plaintiff no longer has standing to maintain the stayed non-individual PAGA claim, that claim accordingly DISMISSED.

Regarding Defendants contention that Plaintiff’s May 29, 2026 Notice of Arbitration Order does not accurately or completely reproduce the arbitration award and Defendant’s request that the Court strike statements inconsistent with the award and treat statements consistent with the award as judicial admissions, the request is DENIED as unnecessary and procedurally unsupported, without prejudice to Defendants’ reliance on otherwise admissible statements in the Notice for an appropriate purpose.

The Notice is not a substitute for the signed award. Although the Notice substantially reproduces the award’s operative provisions, it abbreviates certain findings. Most significantly, the Notice reduces Finding No. 4 to the statement that “Claimant failed to meet his burden of proof.” The signed award more specifically finds that Plaintiff failed to prove his PAGA claims, including the alleged off-the-clock work, minimum-wage and overtime violations, meal- and rest-period violations, waiting-time penalties, wage-statement violations, untimely payment of wages, unfair competition, and his status as an aggrieved employee under Labor Code section 2699 et seq.

The discrepancies do not warrant striking portions of the Notice. The petition asks the Court to confirm the arbitrator’s award “as made,” and the signed award itself provides the controlling statement of the arbitrator’s findings and orders. Any incomplete or inaccurate paraphrase in the subsequently filed Notice does not modify the award and does not create an ambiguity requiring correction.

The Court also declines to issue a separate ruling that selected portions of the Notice constitute judicial admissions. A judicial admission must be a clear and unequivocal concession of fact, and its status depends on the nature and context of the particular statement. Defendants have not identified the precise statements for which they seek a binding admission or explained why such a designation is necessary to resolve the petition. More importantly, the relevant findings are established by the signed and now-confirmed award itself. A separate declaration concerning judicial admissions would therefore add nothing material to the Court’s ruling.

Accordingly, in determining the petition and entering judgment, the Court relies upon the signed May 16, 2026, arbitration award attached as Exhibit A, rather than Plaintiff’s abbreviated characterization of the award in the Notice.

Defendants’ petition is GRANTED. The May 16, 2026, arbitration award is CONFIRMED. Judgment shall be entered in conformity with the award. Plaintiff’s remaining representative PAGA claim is DISMISSED. Defendants’ request to strike portions of Plaintiff’s Notice and to designate selected portions as judicial admissions is DENIED as unnecessary and procedurally unsupported.

CV-25-000345 – CAPITAL ONE NA vs HERNANDEZ, BENNY J – Defendant’s Motion to be Relieved as Counsel – DENIED, without prejudice.

Civ. Proc. Code § 284 permits an attorney to be changed in a matter “at any time before or after judgment or final determination……upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” 

Counsel has not demonstrated sufficient efforts to confirm the client’s current mailing address such as by mailing the motion papers to the client’s address, return receipt requested.

In light of the imminent trial on November 18, 2026, and this deficient demonstration, the motion is denied without prejudice. (California Rules of Court, Rule 3.1362)

CV-25-012721 – TAYLOR, CARLA COZAD vs HOSPITALITY HOUSE ASSISTED LIVING AND MEMORY CARE HEALTH & MEDICAL – Plaintiff’s Motion to be Relieved as Counsel – GRANTED. Civ. Proc. Code § 284 permits an attorney to be changed in a matter “at any time before or after judgment or final determination……upon the order of the court, upon the application of either client or attorney, after notice from one to the other.” 

The motion demonstrates compliance with CRC 3.1362 (d) that requires service on all parties that have appeared in the action.

Accordingly, Defendant’s motion is GRANTED.

The Court’s order relieving Counsel shall take effect upon proof of service of same on the Client, Defendant.

CV-26-000478 – DONAHUE, JOSEPH THOMAS vs MAYOL, TRENTON – a) Defendants Pacific Southwest Container, LLC and Trenton Mayol’s Motion to Strike Portions of Plaintiff Joseph Thomas Donahue’s First Amended Complaint – DENIED; b) Defendants Pacific Southwest Container, LLC and Trenton Mayol’s Demurrer to Plaintiff Joseph Thomas Donahue’s first Amended Complaint - OVERRULED, in part, SUSTAINED in part, with leave to amend.

a) DENIED.

Code of Civil Procedure section 436 authorizes the Court to strike irrelevant, false, or improper matter from a pleading, or any portion of a pleading not drawn or filed in conformity with California law. The grounds for the motion must appear on the face of the pleading or from matters properly subject to judicial notice. City and County of San Francisco v. Strahlendorf (1992) 7 Cal.App.4th 1911.

A motion to strike may be used to challenge a substantively defective portion of a cause of action where the defect, including a statute-of-limitations bar, is clear from the face of the pleading. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) The Court may not, however, resolve disputed factual matters in ruling on the motion.

1. Allegations concerning the 2008 commission plan

Defendants seek to strike allegations concerning the commission plan implemented in 2008, Plaintiff’s complaints about that plan, and PSC’s alleged failure to investigate or take corrective action. Defendants contend those allegations concern time-barred conduct.

Although Plaintiff may ultimately be unable to recover damages based independently upon discrete employment actions occurring outside the applicable limitations period, that does not establish that the challenged allegations are irrelevant or improper. The allegations provide background concerning Defendants’ alleged discriminatory intent, knowledge, motive, and notice. They also concern Plaintiff’s alleged protected complaints, PSC’s alleged failure to investigate, and the asserted relationship between the 2008 and 2024 compensation practices.

Those allegations are potentially relevant to Plaintiff’s timely claims for discrimination, retaliation, failure to prevent discrimination or retaliation, and retaliation under Labor Code section 1102.5. As addressed in the ruling on the accompanying demurrer, Plaintiff’s allegations of repeated discrimination complaints and subsequent compensation-related employment actions are sufficient at the pleading stage to support those claims. Striking the allegations wholesale would be inconsistent with that analysis.

The Court therefore declines to strike the allegations identified in items 1 through 5 of the notice of motion. This ruling does not determine that Plaintiff may recover damages for discrete conduct occurring outside any applicable limitations period or that the continuing-violations doctrine necessarily applies. Defendants may challenge the recoverability of damages based on the 2008 conduct upon a developed evidentiary record.

2. Punitive damages

A claim for punitive damages must be supported by factual allegations showing oppression, fraud, or malice within the meaning of Civil Code section 3294. Conclusory recitations of the statutory language are insufficient. Brousseau v. Jarrett (1977) 73 Cal.App.3d 864. The Court must, however, consider the pleading as a whole and accept its properly pleaded factual allegations as true. Turman v. Turning Point of Central California, Inc., (2010)191 Cal.App.4th 53; Dhital v. Nissan North America, Inc., (2022) 84 Cal.App.5th 828.

Read as a whole, the First Amended Complaint alleges more than the statutory terms “malice,” “oppression,” and “fraud.” Plaintiff alleges that Trenton Mayol, PSC’s chief executive officer, expressed an intention to bring in a “new generation” of younger employees and transition away from long-tenured employees. Plaintiff further alleges that Mayol caused PSC to adopt a 2024 commission plan knowing that its 16-year customer-relationship threshold would affect only a handful of salespeople, all of whom were over 40.

Plaintiff also alleges that Mayol and Bryan Smith refused to treat new lines of business developed from existing customers as qualifying for the enhanced commission rate, despite Defendants’ asserted new-business justification; that commissions earned during the final commission periods of 2023 were retroactively paid at the lower 2024 rate; and that Plaintiff’s discrimination complaints were dismissed without investigation or corrective action. Plaintiff alleges the compensation practices reduced his 2024 earnings by more than $175,000.

Taken as true, these allegations sufficiently support an inference, at the pleading stage, that Defendants acted with willful and conscious disregard of Plaintiff’s rights. Whether Plaintiff can prove malice or oppression by clear and convincing evidence is not presented on this motion.

The allegations are also sufficient under Civil Code section 3294, subdivision (b), as to the corporate defendant. The First Amended Complaint identifies Mayol as PSC’s chief executive officer and alleges that he personally caused PSC to adopt and implement the challenged compensation policy. A chief executive officer is a corporate officer, and the alleged authority to establish a company-wide compensation policy constitutes substantial discretionary authority over corporate policy. White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 577.

Plaintiff’s fraud characterization may not independently satisfy the particularity ordinarily required for a fraud theory. Civil Code section 3294 is nevertheless disjunctive and permits punitive damages upon a sufficient showing of oppression, fraud, or malice. The allegations of intentional age-targeting and conscious disregard are sufficient to allow the punitive-damages request to remain at the pleading stage.

The request to strike the punitive-damages allegations and prayer identified in items 6 through 16 of the notice of motion is therefore denied.

Defendant’s Motion to Strike is therefore DENIED.

b) OVERRULED, in part, SUSTAINED in part, with leave to amend.

A demurrer tests the legal sufficiency of the pleading. The Court accepts as true all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.

The Court gives the complaint a reasonable interpretation and reads it as a whole and its parts in context. (Blank, supra, 39 Cal.3d at p. 318.) A demurrer ordinarily reaches only defects disclosed on the face of the pleading or matters properly subject to judicial notice.

A demurrer ordinarily reaches only defects appearing on the face of the pleading or matters properly subject to judicial notice. The complaint is liberally construed with a view toward substantial justice.  Rutter Guide 10-A.

The complaint must also be liberally construed with a view to substantial justice. Where allegations support different reasonable interpretations, the inference favorable to the plaintiff should be employed at the pleading stage. The Rutter Guide likewise emphasizes that evidentiary facts need not be pleaded and that the complaint survives if its ultimate facts state a cause of action under any viable theory. Rutter Guide, supra).

A general demurrer ordinarily does not lie to only a portion of a cause of action. If sufficient allegations remain to state a cause of action, other defective allegations within that cause of action generally do not support a general demurrer.   Rutter Guide, supra.

When a demurrer is sustained, leave to amend should be granted where there is a reasonable possibility the defect can be cured. Aubry, supra, 2 Cal.4th at pp. 970-971.

Constructive Discharge

A substantial portion of Defendants' demurrer rests on the contention that Plaintiff cannot adequately allege constructive discharge and therefore cannot maintain his discrimination, retaliation, whistleblower retaliation, or wrongful-termination claims.

A constructive discharge requires working conditions so intolerable or aggravated at the time of resignation that a reasonable person in the employee's position would be compelled to resign. The conditions ordinarily must be unusually aggravated or constitute a continuous pattern rather than isolated or trivial workplace grievances. Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 articulates that demanding objective standard.

The standard is objective, and the mere existence of illegal conduct does not itself render working conditions intolerable. (Turner, supra, 7 Cal.4th at pp. 1254-1255.) Thus, Plaintiff's allegation that Defendants acted discriminatorily does not automatically establish constructive discharge

The First Amended Complaint alleges more than dissatisfaction with a compensation decision and considerably more than a conclusory assertion that Plaintiff was forced to resign.

Plaintiff alleges that in 2024 PSC reduced his commission rate to 50 percent of the standard rate for customers with relationships exceeding 16 years; that the new structure reduced his income by more than $175,000; that PSC applied the lower rate to commissions Plaintiff alleges had already been earned during the final commission periods of 2023; that Defendants refused to treat new lines of business obtained from established customers as qualifying for the enhanced commission rate; that management repeatedly dismissed his age-discrimination complaints; and that PSC failed to investigate or remediate those complaints. Plaintiff alleges these circumstances collectively became intolerable existed in late 2024 and precipitated his December 27, 2024, resignation.

Defendants rely on authority holding that reductions in compensation, management decisions, and workplace illegality do not necessarily constitute intolerable working conditions. Those authorities provide substantial limitations on Plaintiff's ultimate ability to establish constructive discharge. However, whether Plaintiff can prove sufficiently intolerable conditions should not be resolved by weighing the allegations against competing factual characterizations on demurrer. Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819 arose from demurrers and recognized that compensation-related circumstances can, depending on their nature and effect, support a constructive-discharge theory. The Court of Appeal agreed that the pleaded facts were deficient but held the plaintiff should have been allowed to amend the constructive-discharge claim

The Court therefore declines to sustain the challenged causes of action solely on the ground that constructive discharge is inadequately alleged. Moreover, as discussed below, several of Plaintiff's statutory claims do not depend exclusively upon constructive discharge because the FAC alleges other adverse employment actions.

First Cause of Action: FEHA Age Discrimination, Disparate Treatment

Plaintiff alleges he was over 40, had performed successfully during his lengthy employment with PSC, and suffered adverse compensation-related employment actions because of age. Arnold v. Dignity Health (2020) 53 Cal.App.5th 412. Among other things, the FAC alleges that the 2024 commission plan reduced commissions for sales to customers with relationships exceeding 16 years; that the employees affected by that threshold were over 40; that younger salespeople allegedly benefited from incentives for new customers and new sales leads; and that Mayol expressed an intention to bring in a "new generation" of younger employees.

Defendants' constructive-discharge argument does not dispose of this claim. Plaintiff alleges discriminatory compensation and other adverse employment actions independently of his subsequent resignation. Accordingly, the demurrer to the First Cause of Action is therefore overruled.

Second Cause of Action: FEHA Age Discrimination, Disparate Impact

The FAC identifies a specific facially neutral employment practice. Villafana v. County of San Diego (2020) 57 Cal.App.5th 1012.

Plaintiff alleges the 2024 plan reduced commissions to 50 percent for sales involving customer relationships exceeding 16 years and that only a handful of long-tenured salespeople met that criterion, all of whom were over 40. He alleges that the policy therefore disproportionately reduced compensation for older employees.

Whether the policy actually produced the alleged disparate effect and whether Defendants can establish a legally sufficient justification present matters beyond the allegations themselves. On demurrer, the pleaded facts sufficiently identify the challenged practice and its alleged disproportionate effect.

The demurrer to the Second Cause of Action is therefore overruled.

Third Cause of Action: FEHA Hostile Work Environment Harassment

Defendants contend the harassment claim improperly relies upon ordinary personnel-management decisions. It is true that discrimination and harassment are distinct FEHA wrongs and that ordinary personnel management is generally associated with discrimination rather than harassment. CACI No. 2523 reflects that distinction.

However, Roby v. McKesson Corp. (2009) 47 Cal.4th 686 recognizes that discrimination and harassment may overlap in their proof and that official personnel actions can be considered as part of the harassment analysis when those actions communicate a hostile message concerning a protected characteristic.

Here, Plaintiff alleges not only commission decisions but Mayol's statement concerning a "new generation" of younger workers, treatment of long-tenured employees as allegedly expendable, preferential assignment of leads to younger salespeople, and dismissive treatment of Plaintiff's age-discrimination complaints.

Whether that alleged conduct ultimately satisfies the severe-or-pervasive standard presents a substantial question, but the Court cannot conclude from the face of the FAC that Plaintiff can establish no harassment claim as a matter of law.

The demurrer to the Third Cause of Action is therefore overruled.

Fourth Cause of Action: FEHA Retaliation

A FEHA retaliation claim requires protected activity, an adverse employment action, and a causal relationship between the two. Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028 recognizes that adverse employment actions are not restricted to ultimate actions such as termination or demotion. A course of conduct may qualify where, considered as a whole, it materially and adversely affects the terms, conditions, or privileges of employment.

The FAC alleges protected activity. Plaintiff alleges that beginning in 2008 he repeatedly complained to management that PSC's commission practices discriminated against older employees. Following implementation of the 2024 commission plan, Plaintiff allegedly again complained to management and specifically told Bryan Smith that the plan targeted older employees and benefited younger employees.

The FAC also alleges potentially adverse employment actions independently of Plaintiff's resignation, including materially reduced compensation, the alleged retroactive reduction of previously earned commissions, refusal to credit certain new business at the enhanced commission rate, and preferential assignment of new sales leads to younger employees. Paragraph 53 alleges Plaintiff's protected activity was a substantial motivating reason for both the alleged constructive discharge and "other adverse employment actions."

CACI No. 2505 recognizes discharge, another adverse employment action, and constructive discharge as alternative forms of actionable conduct for purposes of FEHA retaliation. Consequently, Defendants' contention that Plaintiff cannot establish constructive discharge does not dispose of the entire retaliation claim.

Questions concerning which particular actions were taken because of Plaintiff's protected activity may ultimately require an evidentiary record. At this pleading stage, however, the FAC sufficiently states a retaliation claim.

The demurrer to the Fourth Cause of Action is therefore overruled.

Fifth Cause of Action: Failure to Prevent Discrimination, Harassment, or Retaliation

Demurrer

Defendants contend this cause of action fails because Plaintiff's underlying FEHA claims fail.

Because the Court overrules the demurrer to Plaintiff's discrimination, harassment, and retaliation claims, the asserted basis for disposing of the derivative failure-to-prevent claim does not exist at this stage. The FAC additionally alleges Plaintiff repeatedly complained of age discrimination and that PSC undertook no investigation or remedial measures.

The demurrer to the Fifth Cause of Action is therefore overruled.

Sixth Cause of Action: Negligent Hiring, Supervision, and Retention

The allegations supporting this claim are insufficiently specific.

The FAC generally alleges PSC had a duty to hire, retain, and supervise persons who would not discriminate, harass, or retaliate and that Defendants breached those duties. Although the incorporated allegations identify conduct by Smith and Mayol, the FAC does not adequately allege the facts establishing that PSC knew or should have known, before the relevant allegedly wrongful conduct, that a particular employee had the propensity or unfitness giving rise to the alleged injury. (Doe v. Capital Cities, (1996) 50 Cal.App.4th 1038)

Plaintiff argues in opposition that PSC's owners, board, or managing members possessed authority over Mayol and could have supervised or retained him. Those factual allegations, however, do not appear in the FAC itself and therefore cannot supply facts absent from the pleading.

Because Plaintiff may be capable of alleging which employee was negligently hired, supervised, or retained; who possessed knowledge of that person's alleged unfitness; when that knowledge arose; and how the alleged negligent supervision or retention caused Plaintiff's injury, leave to amend is appropriate. The demurrer to this cause of action is therefore sustained with leave to amend.

Seventh Cause of Action: Whistleblower Retaliation, Labor Code § 1102.5

The FAC alleges Plaintiff disclosed what he believed to constitute unlawful age discrimination to persons with authority over him. Paragraph 71 expressly alleges Plaintiff complained of actual or potential illegality, including alleged violations of FEHA and Government Code section 12900 et seq., and alleges that Defendants retaliated through "adverse employment actions, including employment termination." These allegations incorporate Plaintiff's earlier factual allegations concerning repeated discrimination complaints to management.

A report of suspected unlawful conduct internally may constitute a disclosure protected by section 1102.5 even when the recipient already knows of the allegedly unlawful conduct. People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719.

The governing causation framework is Labor Code section 1102.6. A plaintiff ultimately must establish that protected whistleblowing was a contributing factor in the challenged adverse employment action. Lawson v. PPG Architectural Finishes, Inc. (2022) 12 Cal.5th 703.

The FAC's chronology presents a legitimate causation issue. Adoption of the 2024 commission plan necessarily preceded Plaintiff's subsequent complaint that the 2024 plan was age discriminatory and therefore could not itself have constituted retaliation for that later disclosure. The FAC, however, also alleges complaints concerning age discrimination dating back to 2008 and alleges that adverse treatment continued following Plaintiff's renewed 2024 complaint.

Consequently, the chronology does not negate every causal theory underlying the Seventh Cause of Action. Moreover, Defendants principally challenge this claim on the ground that Plaintiff has inadequately alleged constructive discharge. Their Reply expressly characterizes the demurrer to the section 1102.5 claim as based on Plaintiff's alleged failure to plead constructive termination.

But termination is not the only adverse action cognizable under section 1102.5. CACI No. 4603 recognizes discharge or another adverse employment action and requires the protected disclosure to have been a contributing factor in the challenged decision.

The Court therefore does not determine on demurrer that every employment action alleged in the FAC was retaliatory. Rather, the Court concludes that the causation problem concerning some alleged conduct does not defeat the entire cause of action on the ground asserted.

The demurrer to the Seventh Cause of Action is therefore overruled.

Eighth Cause of Action: Wrongful Termination of Employment in Violation of Public Policy

Unlike the statutory discrimination and retaliation claims discussed above, Plaintiff's wrongful-termination cause of action depends upon establishing an actual or constructive termination.

The FAC alleges that by late 2024 Plaintiff faced the substantial commission reduction, alleged retroactive claw back of earned wages, repeated rejection of his discrimination complaints, lack of investigation or remediation, and refusal to provide enhanced commissions for new business generated from established customers. Plaintiff alleges these conditions forced him to resign on December 27, 2024

Although Turner, supra, establishes a demanding standard and Defendants remain free to challenge the evidence supporting constructive discharge at a later procedural stage, the Court concludes the allegations, taken collectively and liberally construed at the pleading stage, are sufficient to survive demurrer.

The demurrer to the Eighth Cause of Action is therefore overruled.

Ninth Cause of Action: Intentional Infliction of Emotional Distress

Intentional infliction of emotional distress requires extreme and outrageous conduct undertaken with intent to cause emotional distress or reckless disregard of the probability of causing such distress, severe emotional distress, and causation. Begier v. Strom (1996) 46 Cal.App.4th 877. The conduct must exceed all bounds ordinarily tolerated in a civilized community.

The FAC generally alleges Defendants' discriminatory, harassing, and retaliatory conduct was extreme and outrageous and that Defendants knew their treatment would cause Plaintiff extreme hardship.

The specifically pleaded conduct, however, consists principally of compensation decisions, alleged failure properly to pay commissions, rejection or non-investigation of Plaintiff's complaints, allegedly discriminatory personnel practices, and dismissive comments. In the employment context, management and personnel decisions do not become independently outrageous merely because an employee disputes their propriety. Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55 addresses the distinction between personnel-management actions and independently actionable conduct.

The FAC does not presently allege sufficient ultimate facts establishing conduct so extreme that it exceeds all bounds ordinarily tolerated in a civilized community. Because Plaintiff may be able to allege additional facts supporting the outrageousness and intent/recklessness elements, the demurrer is sustained with leave to amend.

The Tenth through Thirteenth Causes of Action are not challenged by this demurrer

Plaintiff is granted leave to amend the Sixth and Ninth Causes of Action and shall file same within (10) ten days of the date of service of this ruling.

The following are the tentative rulings for cases calendared before Commissioner Richard Moths in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

***There are no tentative rulings in Department 19***