This is a straightforward case in which UNITED PARCEL SERVICES, INC. (hereinafter referred to as “UPS”) terminated Plaintiff after he was forced to take a medical leave of absence as a result of his psychically abusive Manager, DANNY ESTRADA (hereinafter referred to as “ESTRADA”). Prior to Plaintiff’s report of assault and battery, UPS knew ESTRADA had an extensive pattern of assaulting and harassing his co-workers, but chose to ignore it. Plaintiff seeks damages for Defendants’ assault and battery, unlawful termination, discrimination and related causes of action.

            Stripped of its rhetoric, Defendants’ Demurrer is no more than the Shakespearian Tale "full of sound and fury, signifying nothing." As fully set forth below, Defendants struggle to trivialize their actions by dissecting the Complaint, and their Demurrer must be overruled.



            Plaintiff was employed by UPS for eleven (11) years. At the time of his termination in September, 2001, he was an Operations Supervisor, reporting to ESTRADA, UPS’s Operations Manager. ESTRADA was the quintessential bully at UPS, and was physically threatening and violent toward Plaintiff. ESTRADA’s actions were anything but child’s play. He would shove and slap Plaintiff, repeatedly smack Plaintiff’s ears until they were red and swollen, lift Plaintiff off the ground and squeeze him until Plaintiff nearly lost consciousness, and on at least one occasion, threw Plaintiff over a desk in and held him a sexually threatening position. Complaint ¶ 11.

            Plaintiff complained to UPS about ESTRADA’s abusiveness, but the company failed to take any steps to protect Plaintiff from the continued assaults. Complaint ¶ 12. Eventually, as a result of these attacks and UPS’s failure to take any action, Plaintiff was forced to take a medical leave of absence and file a workers’ compensation claim. It was while Plaintiff was on medical leave that he was terminated. Complaint ¶ 16. As a result of Defendants’ conduct, Plaintiff has suffered general damages, including extreme and severe emotional distress which is not compensable under the workers’ compensation laws of California. Complaint ¶ 15.

            On August 6, 2001, Plaintiff, in pro per, filed a Complaint against Defendants but never served that Complaint. On December 4, 2001, Plaintiff filed a Complaint with the Department of Fair Employment and Housing (DFEH). He also filed his First Amended Complaint and timely served all parties. Plaintiff has since stipulated to withdrawing his sixth cause of action for intentional misrepresentation.

            On April 2, 2002, Plaintiff amended his DFEH charge to clarify his claims. See Plaintiff’s Request for Judicial Notice in Support of Opposition to Demurrer to First Amended Complaint (hereinafter referred to as “Request for Judicial Notice”), served and filed herewith. All claims set forth in his Amended DFEH charge are brought within statutory time requirements.






            As the Court is well aware, a demurrer can be used to challenge only those defects that appear on the face of the pleading under attack or from judicially noticeable facts. Ion Equipment Corporation v. Nelson (1980) 110 Cal.App.3d 868, 881. As against a general demurrer, a complaint must be liberally construed in order to determine if it states a cause of action entitling the plaintiff to any relief, legal, equitable or extraordinary. City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 800.

            The purpose of a general demurrer is to raise issues as to the legal sufficiency of the facts pleaded. The issue is whether the pleaded facts show the existence of a right in the plaintiff, a duty owed by the defendant, and a wrong or breach of that duty on the part of the defendant. Becket v. Welton, Becket and Associates (1974) 39 Cal.App.3d 815, 819. While a general demurrer can be used where the facts themselves are insufficient, it should not be used where there is simply an insufficient statement of the facts. Harnish v. Beamer (1886) 71 Cal. 155. That is, a general demurrer does not apply when the facts are shown to exist, although they may be stated imperfectly, inaccurately, or ambiguously, or where the essential facts appear by implication only. Amestoy, Inc. v. Electrical Rapid Transit Company (1892) 95 Cal. 311.

            Defendants' present Motion is based on rhetoric and misrepresentations of current law. Other than those points conceded, there are no defects which appear on the face of the First Amended Complaint and therefore, Plaintiff respectfully requests that Defendants' Demurrer be overruled. Footnote




            By way of the seventh and eighth causes of action, Plaintiff is claiming damages for harassment as well as discrimination. Defendants acknowledge the same as follows: “. . . Plaintiff appears to be asserting a claim not only for alleged discrimination in violation of the Fair Employment and Housing Act (“FEHA”) but also for alleged harassment. Similarly, in his eighth cause of action entitled discrimination in violation of FEHA - Plaintiff again is attempting to recover for alleged discrimination and harassment.” Defendants’ Memorandum of Points and Authorities, page 8, lines 17-19.

            It is well established law that the labels attached to a cause of action are inconsequential if the complaint pleads facts sufficient to state any cause of action entitling a plaintiff to relief. Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908. In his eighth cause of action, which incorporates all previous allegations and paragraphs in the First Amended Complaint, Plaintiff has pled facts regarding discrimination by Defendant UPS and harassment by Defendant ESTRADA. Plaintiff alleges ESTRADA’s harassment, in relevant part, as follows:

            (a)       At said times and place in a continuing course of conduct continuing through one (1) year of the filing of this Complaint, Plaintiff was subject to Defendants’ assault and battery of Plaintiff by and through UPS’s supervising and managing agent ESTRADA. Complaint ¶ 10.


            (b)       Said assault and battery consisted of Defendant ESTRADA’s repeated and continued unwanted and not consented to touching of Plaintiff’s person, including squeezing Plaintiff’s body, picking up and holding Plaintiff’s body in the air, repeatedly striking Plaintiff’s ears, intentionally shoving and bumping Plaintiff, trapping and bending Plaintiff’s body over a desk, striking Plaintiff’s hand while attempting to strike Plaintiff’s face, and such other acts of assault and battery according to proof. Complaint ¶ 11.


            (c)       Defendant ESTRADA’s repeatedly and continuously threatened unwanted and not consented to touching of Plaintiff’s person, including threatening to squeeze Plaintiff’s body, threatening to pick up Plaintiff’s body into the air, threatening to strike Plaintiff’s ears, threatening to shove and bump Plaintiff, threatening to trap and bend Plaintiff’s body over a desk, and making threatening statements concerning sexually assaulting Plaintiff. Complaint ¶ 18.


            (d)       Defendants committed the acts alleged herein maliciously, fraudulently, and oppressively, with wrongful intention of injuring Plaintiff, and acted with an improper and evil motive amounting to malice, and in conscious disregard of Plaintiff’s rights. Complaint ¶ 63.

The eighth cause of action, which incorporates by reference the previous paragraphs of the First Amended Complaint, alleges that Defendants “harassed” Plaintiff in violation of FEHA. Complaint ¶ 66. Plaintiff has also amended his DFEH charge to clarify his claim of harassment against ESTRADA. See Request for Judicial Notice. While Plaintiff concedes that ESTRADA should not be held liable for UPS’s discrimination, individual supervisory personnel are held liable for harassment. Page v. Superior Court (3Net Systems) (1995) 31 Cal.App.4th 1206; Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55; Reno v. Baird (1998) 18 Cal.4th 640. As such, ESTRADA can and should be held liable for his harassing behavior, and the Complaint states a valid cause of action against him.

            Defendants' analogy of this case to Janken v. GM Hughes Electronics and Reno v. Baird, indicating that the actions taken against Plaintiff were "common personnel management actions," is unquestionably a misstatement of the law. The Janken Court clearly distinguishes between a supervisor's actions that are "commonly necessary personnel management actions" and allegations of conduct that violate FEHA. Id. at 62-63. Indeed, the Janken Court concluded that individual supervisory employees should be held personally liable for conduct which violates FEHA unless their conduct is based solely on managerial decisions that are inherently necessary to perform their supervisory functions. Discussing the distinction between harassment and discrimination, the Janken Court stated, "we conclude that the legislature's differential treatment of harassment and discrimination is based on the fundamental distinction between harassment as a type of conduct not necessary to a supervisor's job performance as contrasted with business or personnel management decisions." Id.

            The California Supreme Court in Reno confirms Janken’s conclusion that the imposition of individual liability is appropriate. Reno, supra, at 645. Thus, Defendants’ sweeping assertion that there can be no individual liability under FEHA is simply untenable and contradicted by ample legal authority.

            Plaintiff is confident that after a clear reading of the Complaint, the Court will determine that Plaintiff sufficiently alleges ESTRADA’s liability based on conduct which is deplorable and undisputedly unrelated to routine management decisions. Plaintiff pleads that ESTRADA continuously harassed Plaintiff, and in doing so, was unmotivated by any legitimate employer concerns, acting maliciously, fraudulently and expressly with the wrongful intention of injuring Plaintiff, with an improper and evil motive amounting to malice, in conscious disregard of Plaintiff's rights. See Complaint, && 10, 11, 63, 66. The type of conduct alleged against ESTRADA is of a type that is "avoidable and unnecessary to job performance." Janken, supra, at 64. Since Plaintiff has pled ESTRADA’s harassment was outside the normal scope of his employment functions, Defendants' Demurrer must be overruled so that Plaintiff can hold ESTRADA individually liable for his egregious conduct.

            With regard to the remaining issues in Defendants’ Demurrer concerning ESTRADA’s liability, Defendants have misread the third, fourth and fifth causes of action for wrongful termination, breach of implied-in-fact contract and breach of the implied covenant of good faith and fair dealing (entitled “Bad Faith”). Those causes of action are alleged solely against UPS and DOE Defendants rather than any individual. Specifically, with emphasis added, Plaintiff alleges:

            (a)       When Defendant UPS hired Plaintiff as an employee, Plaintiff entered into an employment relationship with Defendant, in which he agreed to work for UPS, who, in return, agreed to pay Plaintiff compensation. During the entire course of Plaintiff’s employment with UPS there existed an implied-in-fact contract between Plaintiff and UPS.... Complaint ¶ 40.


            (b)       The above-referenced employment agreement was evidenced by various written documents, including UPS’s established policies.... Complaint ¶ 41


            (c)       Despite the representations made to Plaintiff by UPS, and the reliance he placed upon them, UPS failed to carry out its responsibilities under the terms of the employment agreement by subjecting Plaintiff to harassment, physical abuse and mental abuse. Complaint ¶ 44.

            (d)       The law imposed on Defendant UPS in connection with the employment agreement to act fairly and in good faith towards Plaintiff. Defendant covenanted to give full cooperation to Plaintiff in his performance under the employment agreement and to refrain from an act which would prevent or impede any of the conditions of the employment agreement from being performed, which would deny the employment agreement, or which prevent the Plaintiff from receiving the benefits of the employment agreement. Complaint ¶ 47.


            (e)       Defendant UPS breached these duties imposed by law in connection with the employment agreement ... Complaint ¶ 48.

            Similarly, the third cause of action for tortious termination in violation of public policy is alleged against UPS only. Said cause of action alleges that “Defendant UPS terminated Plaintiff” in violation of public policy, and UPS’s discharge and discrimination violated public policy. Complaint, ¶¶ 31 - 33.

            It is clear from the allegations that Plaintiff only holds UPS and any unknown DOE Defendants responsible for the acts alleged in his third, fourth and fifth causes of action and Defendants’ deliberate misinterpretation of these causes of action is an obvious effort to mislead and prejudice the Court. Consequently, the Demurrer by ESTRADA to these causes of action should be overruled.


            In California, employees may bring a tort action for wrongful discharge if their employer discharges them for a reason that violates fundamental public policy. Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 176. The Tameny Court approved earlier decisions in which courts recognized that general statutes affording employees certain rights formed the basis of fundamental public policies, which would be contravened by employee dismissal. Id. at 177.

            California courts have found the following policies to be of sufficient public interest to provide a basis for the cause of action: (1) state constitutional prohibitions of discrimination and harassment in employment [Rojo v. Kliger (1990) 52 Cal.3d 65, 90 (sex discrimination, prohibited under California Constitution article I, § 8, gives rise to cause of action.)]; (2) FEHA violations [City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1160 (employees whose employment is terminated because of a physical or mental disability may, in addition to bringing a claim directly under FEHA, bring a tortious termination claim)]; (3) California Family Rights Act protections [Ely v. Wal*Mart, Inc. (CD Cal 1995) 875 F.Supp.1422, 1426 (policy against employment discrimination on basis on medical condition, as stated in Government Code

§ 12945.2, inures to benefit of public at large)]; (4) Whistle blower cases [Collier v. Superior Court (1991) 228 Cal.App.3d 1117, 1127 (retaliation by employer against employee who seeks to further well-established public policy against crime in the workplace)]. In this instance, the statute that most clearly supports a cause of action for tortious termination in violation of public policy is Government Code § 12940 et seq.

            There is no requirement, as UPS contends, that Plaintiff identify each statute giving rise to his public policy claim, and the fact that the statutory underpinnings for Plaintiff’s public policy tort claim were not specifically enumerated in his First Amended Complaint is of no significance. Green v. Ralee, (1998) 19 Cal.4th 66, 83. Rather, the normal rules of construing the Complaint as set forth above apply.  

            Employers are held responsible for knowing the fundamental public policies of the state and nation. Gantt v. Sentry Ins. (1992) 1 Cal.4th 1083 (overruled on other grounds). In instances such as this one, where it is proper to assume employers are aware of the statutory prohibition (i.e., prohibitions against discrimination, harassment and retaliation as set forth in FEHA), a plaintiff need not specify in his complaint his claim’s statutory basis. Green v. Ralee, supra, at 83. In other words, UPS is bound to know and abide by the provisions set forth in FEHA forbidding discrimination and retaliation, and the public policy implicated therein, which affects all UPS employees in California and is at the heart of Plaintiff’s claims.        

             Defendants erroneously contend that Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238 (overruled on other grounds) requires a plaintiff to specifically identify a defendant’s statutory violation(s). First, the Turner decision holds that plaintiffs should specify the statutory provisions on which they rely no later than at the summary judgment stage. Id. at 1257. Moreover, the plaintiff in Turner, at the time of summary judgment, had made only vague allegations that he was forced to resign after complaining to management about violations of “internal operating practices,” and even after responding to discovery, failed to identify the statutes and regulations supporting his public policy claim. As a result, the Turner Court held that the defendant had insufficient notice of the plaintiff’s claims.

            We have an entirely different situation in the case at bar than the one set forth in Turner and UPS’s claim that it is unable to determine a public policy at issue is absurd. Plaintiff specifically alleges that UPS terminated him based on his medical status, mental health status and physical condition while he was on a medically required leave of absence caused by ESTRADA’s unlawful abuse, of which UPS was aware and ratified, and that UPS terminated Plaintiff for pretextual reasons to hide its illegal conduct and in retaliation for Plaintiff reporting ESTRADA’s illegal acts and threatening to report ESTRADA’s conduct to local police agency. Plaintiff further alleges that UPS’s discharge and discrimination violated public policy, California statutory and common law. First Amended Complaint, ¶¶ 31 - 33.

            Aside from the obvious allegations set forth throughout Plaintiff’s First Amended Complaint alleging FEHA violations, UPS was served with Plaintiff’s DFEH charge, putting it on notice of Plaintiff’s FEHA claims at the outset of this lawsuit. Moreover, UPS has since taken two (2) days of Plaintiff’s deposition to further inquire into those claims.

            In sum, there is no requirement, as UPS contends, that Plaintiff identify each statute giving rise to his public policy claim. Plaintiff’s allegations are sufficiently tethered to statutory expressions of public policy and his allegations that UPS violated those policies embodied therein are sufficient to support his third cause of action. The fact that UPS has actual notice of its alleged statutory violations from the DFEH and from its own cross-examination of Plaintiff during his deposition renders an order overruling the Demurrer on this point compulsory.






            Defendants’ sole ground for demurring to the fourth cause of action for breach of implied-in-fact contract is based on Plaintiff’s inability to maintain a breach of contract claim as against Defendant ESTRADA. Defendants do not contend that this cause of action is defective in any other respect.

            As set forth above, Plaintiff has alleged his breach of implied-in-fact contract as against Defendant UPS only, and not against any individual Defendant. As such, the demurrer to the fourth cause of action must be overruled. To the extent that Defendants’ demur to the fifth cause of action for breach of the implied covenant of good faith and fair dealing (labeled as “Bad Faith”) on the ground that no individual liability exists, the Demurrer must be overruled for the same reasons.

            Defendants further demur to the fifth cause of action for breach of the implied covenant of good faith and fair dealing, alleging that there is no such cause of action. Footnote Their assertion flies in the face of longstanding law and practice.

            Under federal and state law, an employee may not be wrongfully discharged, disciplined nor demoted as the result of unlawful discrimination and "there is no rational reason why an employer's policy that its employees will not be demoted except for good cause, like a policy restricting termination ... cannot become an implied term in an employment contract." Scott v. Pacific Gas and Elec. Co. (1995) 11 Cal.4th 454, 464. An employee is entitled to rebut the presumption of at-will employment by a contractual agreement, express or implied, to limit an employer's power of demotion, discipline or wrongful termination. Id. at 465.

            Plaintiff alleges he was not an “at-will” employee and his allegation of breach of the implied covenant of good faith and fair dealing, which inures to every contract, necessarily follows. The covenant of good faith is read into contracts in order to protect the promises of the contract. In essence, the covenant is implied as a supplement to the contractual covenants, to prevent a contracting party from engaging in conduct which, while not technically transgressing the covenants, frustrates the other party's right to the benefits of the contract. Racine & Laramie, Ltd. v. Department of Parks and Recreation (1992) 11 Cal.App.4th 1026, 1031.

            Breach of the implied covenant of good faith and fair dealing as a viable cause of action is clearly expressed in Comeaux v. Brown & Williamson Tobacco Company (1990) 915 F.2d 1264. The Comeaux Court held that “[t]he implied covenant, however, remains available as a cause of action, even in the face of an at-will employment contract, where a plaintiff alleges that conduct other than his discharge violated the covenant.” Id. at 1272. In the case at hand, the First Amended Complaint alleges the Defendant UPS breached the covenant by interfering with Plaintiff in the performance of his job duties, denying him employment benefits, and by fabricating a pretext for terminating Plaintiff. Complaint ¶ 48. Plaintiff has unequivocally alleged that he was not an “at-will” employee and that conduct other than his discharge violated the covenant. Thus, Plaintiff has alleged a viable cause of action for breach of the covenant.

            Defendants mistakenly rely on Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317. Guz involved a motion for summary judgment, not a demurrer. Moreover, the Guz Court specifically states that the “case presents questions about the law governing claims of wrongful discharge from employment as it applies to an employer’s motion for summary judgment.” Id. at 325. [Emphasis added.] Unlike demurrers, summary judgment motions are based on lack of “evidence” or “proof.” The focus of a demurrer is sufficient pleading--not proof or evidence. Finally, Defendants surreptitiously neglect to inform the Court that Guz dealt solely with at-will employment. The present action does not involve at-will employment. It involves an implied-in-fact contract. Guz provided that the implied covenant of good faith and fair dealing is tied to breach of contract and since the Court found there was no express or implied contract in that case, a cause of action for breach of the implied covenant could not apply. Id. at 349.

            Guz further denounced the breach of the covenant of good faith and fair dealing where the sole ground for applying the covenant was the act of wrongful termination. Id. at 351. The present action does not allege that the sole ground for applying the covenant is the termination itself. It alleges that UPS breached the covenant by interfering with Plaintiff in the performance of his job duties, denying him employment benefits, and by fabricating a pretext for terminating him. Complaint ¶ 48.

            Defendants conspicuously ignore the telling language in Guz which clearly enunciates that there is a cause of action for breach of the implied covenant of good faith and fair dealing. Specifically, the Court concluded:

We do not suggest the covenant of good faith and fair dealing has no function whatever in the interpretation and enforcement of employment contracts. As indicated above, the covenant prevents a party from acting in bad faith to frustrate the contract’s actual benefits. Thus, for example, the covenant might be violated if termination of an at-will employee was a mere pretext to cheat the worker out of another contract benefit to which the employee was clearly entitled, such as compensation already earned. We confront no such claim here. Id. at 353, fn.18.

In this case, Plaintiff, whose employment was not at-will, has alleged violation of the covenant by UPS’s fabrication of a pretext for termination which denied Plaintiff his employment benefits.

            Finally, although Defendants make a fleeting citation to Award Metals, Inc v. Superior Court (1991) 228 Cal.App.3d 1128, that case did not involve causes of action for either breach of contract or breach of the covenant of good faith and fair dealing. Rather, the issue in that case was Plaintiff’s attempt to plead two identical negligence causes of action. As such, Award Metals is wholly inapplicable.

            The Complaint in this action clearly enunciates that Plaintiff was not an at-will employee, that UPS breached the implied covenant to frustrate the contract’s actual benefits, by interfering with Plaintiff’s performance, and by terminating Plaintiff based on pretext. The Guz Court expressly stated that under such circumstances, the covenant of good faith and fair dealing serves its proper function. Therefore, the Demurrer to this cause of action must be overruled.


            Defendants demur to the eighth cause of action for discrimination on the alleged ground that there is no individual liability for discrimination. As set forth above, Plaintiff has alleged harassment against ESTRADA, not discrimination. Defendant has asserted no other basis for the Demurrer to this cause of action. As such, the Demurrer on this ground should be overruled.




In their misguided attempt to convince the Court to sustain their Demurrer to the seventh cause of action, Defendants unabashedly pervert the holding of Trujillo v. North Co. Transit District (1998) 63 Cal.App.4th 280 by erroneously claiming a cause of action for failure to maintain an environment free from discrimination and harassment does not exist.  

            Government Code § 12940(k) (formerly subdivision (i)), provides that it is an unlawful employment practice “[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.” Trujillo explicitly holds “[t]his section creates a tort that is made actionable by statute.” Id. at 286.

            In fact, the Trujillo case went to trial on this very cause of action and the jury rendered a verdict on the cause of action for the plaintiff. On appeal however, the Court upheld the trial court’s Judgment Notwithstanding the Verdict, reasoning that since the jury found there was no discrimination, there could be no failure to prevent discrimination. Id. at 288-289.

            UPS brazenly attempts to benefit from a case regarding sufficiency of evidence at trial to persuade the Court to wrongfully reject a valid cause of action. Accordingly, the Demurrer to this cause of action should be overruled.


            Defendant further erroneously asserts that Plaintiff has failed to exhaust administrative remedies. Defendant ignores the express language in paragraph 67 of the First Amended Complaint whereby Plaintiff pleads that “Plaintiff has filed a charge of mental disability and physical disability discrimination with the California Department of Fair Employment and Housing within one year of the discrimination...” California case law explicitly provides:

[W]here a plaintiff filed a DFEH claim alleging discrimination and plaintiff’s civil action alleged both discrimination and harassment, both of which allegedly occurred during the same time frame, the court held that plaintiff had exhausted his administrative remedies because his harassment allegations encompassed his discrimination claims. [Citation.] ¶ Here, plaintiff filed a charge with the EEOC (which was forwarded to the DFEH) claiming discriminatory termination based on plaintiff’s Asian race and Filipino national origin. [Reference to exhibit.] This case is similar to Baker because plaintiff’s harassment claim is based on some of the same factual allegations as plaintiff’s discrimination claim.... ¶ The court is satisfied that, as a matter of law, plaintiff has exhausted his administrative remedies with respect to his harassment claim because that claim would have been uncovered in an investigation of his discrimination charge. Pacanza v. Shell Oil Company 1997 WL 227980, 14 (N.D.Cal.)

            In the present action, Plaintiff’s discrimination claim, filed with the DFEH on December 4, 2001, encompasses his harassment claim, and, as in Pacanza, the harassment claim would have been uncovered in an investigation of his discrimination charge.

            Even so, once charges are filed, amendments are liberally permitted to cure technical defects or omissions, or to clarify and amplify allegations. See Ramirez v. National Distillers (9th Cir.1978) 586 F.2d 1315. In this instance, Plaintiff filed an Amended DFEH charge in which he specifically alleges ESTRADA’s harassment in order to clarify his claims. See Request for Judicial Notice. Amendments relate back to the original filing date if they relate to the same basic events, although in this case, Plaintiff’s Amended DFEH charge falls well within statutory time limits. Footnote Id.

            As such, Plaintiff has exhausted his administrative remedies, and the First Amended Complaint properly alleges the same. The Demurrer should be overruled accordingly.


                        FROM LIABILITY IN THIS INSTANCE.

            As a “last ditch” effort to reduce their liability, Defendants seek to dismiss Plaintiff’s ninth and tenth causes of action for intentional and negligent infliction of emotional distress (hereinafter referred to as “IIED” and “NIED” respectively), asserting that such claims are barred by the exclusive remedy provisions of workers’ compensations statutes. Their last-ditch effort to rid themselves of Plaintiff's valid causes of action must fail because workers’ compensation laws do not preempt Plaintiff’s claims for their misconduct.

            It is well-settled law that where an employer’s misconduct exceeds the normal risks of the employment relationship, workers’ compensation does not pre-empt IIED and NIED claims. Because an employer’s unlawful discrimination is not a normal incident of employment, the Workers’ Compensation Act does not preempt emotional distress claims, whether intentional or negligent. Accardi v. Superior Court (1993) 17 Cal.App.4th 341 (discrimination in employment not normal incident of employment, and a claim for damages under FEHA is not preempted by Workers’ Compensation Act.)

            In Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, the Court reversed a summary judgment for the defendant, holding that Plaintiff’s emotional distress claims were not barred by worker’s compensation where the emotional distress arose out of the employer’s disability discrimination. Id. at 1492. In doing so, the Court addressed two cases mistakenly relied upon by the present Defendants: Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148 and Livitsanos v. Superior Court (1992) 2 Cal.4th 744. The Fretland Court noted that neither Cole nor Livitsanos prohibit emotional distress claims, as UPS contends. Instead, both cases clearly provide for emotional distress claims where the defendants’ conduct falls outside of the normal risks of the employment relationship. The Fretland Court provided, in pertinent part, as follows:

Cole does not prohibit all emotional distress causes of action against an employer, but only those based on conduct that is a normal risk of the employment relationship. Indeed, our Supreme Court made this point clear in Livitsanos v. Superior Court (1992) 2 Cal.4th 744 . . . another case upon which the County mistakenly relies. The Livitsanos court expressly found that a plaintiff’s emotional distress claims against his employer would not be preempted if the “defendants’ misconduct exceeded the normal risks of the employment relationship.” [Citation]. ¶ As discussed above, work-related injury discrimination is not a normal risk of the compensation bargain. [Citation.] Thus, Fretland’s emotional distress claims are not barred by the exclusivity rule to the extent they seek emotional distress damages for the alleged work-related injury discrimination. Summary judgment on [the IIED and NIED claims] should not have been granted. Fretland, supra, at 1492.

            It is equally clear that when an employer’s conduct violates fundamental public policy, such as here, claims for IIED and NIED are not subject to the defense of workers’ compensation exclusivity. See, e.g., Maynard v. City of San Jose (9th Cir.1994) 37 F.3d 1396, 1405 (neither employee’s claims for IIED nor NIED preempted because defendant’s conduct implicated fundamental public policy, i.e., prohibiting retaliation against employees who oppose or participate in investigation of discriminatory practices under Govt. Code §12940(f).); Kovatch v.

California Cas. Mgmt. Co. (1998) 65 Cal.App.4th 1256, 1277 (“A claim for wrongful termination in violation of public policy is one type of claim that is not barred by the exclusive remedy provisions of the Workers’ Compensation Act.”); Gantt v. Sentry Ins. supra, at 1101 (a tortious termination claim does not result from a “risk reasonably encompassed within the compensation bargain.”) The language the Supreme Court used throughout Gantt on this point makes it clear that the Court was referring not just to the specific termination in Gantt, but to all tortious termination claims.

            Similarly, in Cabesuela v. Browning-Ferris Industries of California (1998) 68 Cal.App.4th 101, the Court held that where a plaintiff has a viable claim for wrongful termination in violation of public policy, an IIED claim is not barred by workers’ compensation. Specifically, the Court stated: “[W]here, as here, a plaintiff’s emotional distress claim is premised upon his employer’s violation of a fundamental public policy of this state, such misconduct lies outside of the exclusive remedy provisions of the Labor Code.” Id. at 112-113. (See also Phillips v. Gemini Moving Specialists (1998) 63 Cal.App.4th 563, holding that a plaintiff can recover for IIED if he has a cause of action for wrongful termination in violation of public policy or in violation of an express statute.)

            Defendants’ citation to Shoemaker v. Myer (1990) 52 Cal.3d 1 is misleading. That decision is consistent with the line of decisions cited above, holding in no uncertain terms that violation of whistle blower laws is conduct which “lies well outside the compensation bargain.” Id. at 22-23. The case further affirmed that the Cole exclusivity rule only bars IIED claims where such claims are “not dependent upon the violation of an express statute or violation of fundamental public policy.”

            In this case, Plaintiff’s IIED and NIED causes of action incorporate by reference his public policy, discrimination, and harassment claims. Plaintiff’s emotional distress claims are based upon UPS’s wrongful termination of Plaintiff in violation of public policy, Defendants’ unlawful assaults and batteries against Plaintiff, UPS’s unlawful discrimination, and Defendants’ unlawful harassment; conduct that clearly falls beyond the boundaries of the normal part of Plaintiff’s employment. Therefore, Defendants’ Demurrer to these causes of action must be overruled.



            Prior to this Hearing, Plaintiff voluntarily stipulated to dismissing his sixth cause of action for fraud. His remaining causes of action are valid and properly stated. Accordingly, Plaintiff respectfully requests that the Court overrule Defendants' Demurrer.  

Dated: April 5, 2002                                                   KEEGAN & ASSOCIATES

Attorneys at Law



                                                                           By:     __________________________

                                                                                    Dru Anne Keegan

Attorney for ROBERT ALLMAN