Case Name:    Elizabeth Cardoso v. Edward Bright

Case No.:        18CV328690

  1. Background

This is an emotional distress action brought by Elizabeth Cardoso (“Plaintiff”) against Edward Bright (“Defendant”).

According to the allegations of the complaint, Plaintiff and Defendant were employees of East Side Union High School District where Plaintiff worked as a Custodial Operations Manager.

Around January 2016, Defendant began verbally assaulting Plaintiff because of her gender and sexual orientation. For example, during a group meeting Defendant made “homophobic comments and stated he would not drive a district vehicle with a gay logo,” but Plaintiff could drive it because she was a “ ‘lesbo.’ ” (Compl., ¶ 6.)

On or about January 26, 2016, Defendant asked Plaintiff why she always wore jeans and a t-shirt. He then stated, “ ‘you have boobs you should wear girl clothes.’ ” (Ibid.) Further, on or about March 10, 2016, Defendant yelled “faggot” at Plaintiff. When Plaintiff asked Defendant to stop, he responded: “ ‘[Y]ou’re not a faggot because you’re a girl. You’re a lesbo.’ ” (Ibid.) Thereafter, on or about April 13, 2016, Defendant and other co-workers intentionally assaulted and sexually battered Plaintiff in a storage room.

On or about May 23, 2016, Defendant and John Lawrence planned a lunch for the employees. Plaintiff was the only employee not invited. When she confronted John Lawrence, he told her the lunch was only for male workers. Plaintiff pointed out that three other women were invited, and John Lawrence responded by saying they were “normal” girls and Plaintiff was not. Defendant proceeded to laugh at Plaintiff and “intentionally humiliated plaintiff by telling her and the others ‘yeah, you see?’ ” (Ibid.)

Defendant’s pattern of conduct caused Plaintiff to suffer severe emotional distress.

Plaintiff brings a single cause of action for intentional infliction of emotional distress against Defendant.

Defendant presently demurs to the complaint and additionally moves to strike portions of the complaint. Plaintiff opposes both.

  1. Merits of Demurrer

As a preliminary matter, Defendant did not adequately state the grounds for his demurrer. The grounds for demurrer are enumerated in Code of Civil Procedure section 430.10 and must be distinctly specified in the demurrer (Code Civ. Proc., § 430.60). Defendant does not identify any enumerated ground, but merely recites arguments advanced in support of his demurrer. (See Fremont Indem. Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 111.) Specifically, Defendant asserts his demurrer is based on the purported ground that the allegations pertaining to conduct occurring before May 21, 2016 are barred by the statute of limitations and the allegations pertaining to conduct occurring after May 21, 2016, fail to sustain a claim for intentional infliction of emotional distress. (See Dem., p. 2:2-5.) The statute of limitations is not an enumerated ground for demurrer; rather, it is an argument that may be advanced in support of a demurrer on the ground of failure to state sufficient facts. (See E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315; see also ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) Likewise, failure to sustain a claim is not an enumerated ground for demurrer; instead, it may be asserted as argument in support of a demurrer on the ground of failure to state sufficient facts (See Cantu v. Resolution Trust Corp., 4 Cal.App.4th 857, 887.) While a demurrer may be disregarded for failure to properly specify the grounds upon which any objection to the complaint is taken (Code Civ. Proc. § 430.60), the Court will treat Defendant’s demurrer as made on the ground of failure to state sufficient facts.

Defendant’s arguments address two different portions of Plaintiff’s singular cause of action for intentional infliction of emotional distress with the apparent aim of demonstrating the entire cause of action fails. In this regard, it appears Defendant recognizes that a demurrer does not lie to only a part of a cause of action. (PHII, Inc. v. Super Ct. (1995) 33 Cal.App.4th 1680, 1682.)

  1. Portion of Claim Based on Conduct Occurring Prior to May 21, 2016

Defendant argues the conduct occurring before May 21, 2016, is barred by the applicable two-year statute of limitations.

“The defense of statute of limitations may be asserted by general demurrer if the complaint shows on its face that the statute bars the action. There is an important qualification, however: In order for the bar of the statute of limitations to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows merely that the action may be barred.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315–16, citations and internal quotations omitted.) A defendant challenging a pleading based on the statute of limitations must demonstrate (1) which statute of limitations applies and (2) when the cause of action accrued. (Id. at p. 1316.)

A cause of action for intentional infliction of emotional distress is subject to a two-year statute of limitations. (Code Civ. Proc., § 335.1; Pugliese v. Super. Ct. (2007) 146 Cal.App.4th 1444, 1450.) “ ‘A cause of action for intentional infliction of emotional distress accrues, and the statute of limitations begins to run, once the plaintiff suffers severe emotional distress as a result of outrageous conduct on the part of the defendant.’ ” (Wassmann v. S. Orange Cty. Cmty. Coll. Dist. (2018) 24 Cal.App.5th 825, 853, quoting Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4th 857, 889.) When there are multiple instances of outrageous conduct, each instance is considered separately and the statute of limitations begins to run for each instance at the time it occurs. (See Pugliese, supra, 146 Cal.App.4th at p. 1451.) Continuous accrual principles do not apply.[1] (See ibid.; see generally Aryeh v. Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1197–99.)

Defendant contends all but one of his alleged conduct occurred more than two years before she filed the complaint on May 21, 2018. Defendant concludes Plaintiff’s claim, to the extent it is based on this conduct, is barred by the two-year statute of limitations. Plaintiff does not address the statute of limitations in opposition. Thus, Plaintiff implicitly concedes Defendant’s argument has merit.

For these reasons, Plaintiff’s claim from the face of the pleading appears to be time-barred to the extent the conduct complained of occurred prior to May 21, 2016.

  1. Portion of Claim Based on Conduct Occurring After May 21, 2016

Defendant argues the conduct occurring after May 21, 2016—particularly the act of laughing at Plaintiff and saying, “yeah, you see?” on May 23, 2016—does not constitute extreme and outrageous behavior to state a claim for intentional infliction of emotional distress.

“An essential element of a cause of action for intentional infliction of emotional distress is ‘extreme and outrageous conduct by the defendant.’ ” (Yurick v. Super. Ct, (1989) 209 Cal.App.3d 1116, 1123, citations and internal quotations omitted.) “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) “[T]he standard for judging outrageous conduct does not provide a ‘bright line’ rigidly separating that which is actionable from that which is not. Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of the appraiser’s values, sensitivity threshold, and standards of civility.” (Yurick v. Super. Ct, supra, 209 Cal.App.3d 1116, 1128.) “It is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities, or threats which are considered to amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of hurt feelings.” (Ibid.)

Defendant argues the alleged conduct that occurred on May 23, 2016, when he mockingly laughed at Plaintiff and said “yeah, you see?,” is not extreme and outrageous. He characterizes this conduct as a “passing non-derogatory comment,” impliedly arguing it is non-actionable. (Memo., p. 6:17.)

Defendant cites Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590 (Plotnik) and Golden v. Dungan (1971) 20 Cal.App.3d 295 (Golden) in support, arguing his conduct bears no resemblance to that of the defendant in each case whose conduct was deemed outrageous. The appellate court in Plotnik, in reviewing a jury verdict, stated that a claim for intentional infliction of emotional distress could stand against a neighbor who deliberately attacked the plaintiff’s dog with a baseball bat. (Plotnik v. Meihaus, supra, 208 Cal.App.4th 1590, 1611.) In Golden, the appellate court, in reversing a trial court’s decision on demurrer, held the plaintiff’s complaint stated a claim for intentional infliction of emotional distress by alleging the defendant loudly pounded on the plaintiff’s door at midnight waking the occupants and the neighborhood. (Golden v. Dungan, supra, 20 Cal.App.3d 295, 311.)

Defendant further asserts his conduct does not even rise to the level of the employer defendant in Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768 (Moncada). In that case, the employees alleged their employer misled them “into believing they would be compensated in an amount that would allow them to retire if they continued to work for [their employer] until the company was sold.” (Id. at pp. 780–81.) The Sixth District concluded that while the false promise of a bonus payment “demonstrate[d] a callous disregard for plaintiffs’ professional and personal well-being, the alleged conduct as stated [was] not extreme or outrageous to support a cause of action for intentional infliction of emotional distress.” (Id. at p. 781.)

Defendant’s arguments are persuasive. Defendant’s alleged conduct is not similar to that of the defendants in Plotnik or Golden, as he did not act in a way that exceeded all bounds of that usually tolerated in a civilized community. Further, Defendant has demonstrated that his alleged conduct does not even rise to that of the defendant in Moncada, whose actions were not considered outrageous but merely “callous.” Here, Plaintiff merely alleges Defendant laughed at her and said “yeah, you see?” As Defendant contends, this one passing comment is not outrageous and extreme. Although this conduct may have humiliated plaintiff, as alleged, such hurt feelings cannot be a basis for recovery.

Plaintiff’s contentions in opposition do not support a contrary conclusion. She asserts Defendant’s conduct on May 23, 2016, does not stand in a vacuum, but was part of a systematic pattern of behavior toward her in prior months. In support, Plaintiff relies on Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493 (Alcorn) and De Santiago v. Greyhound Lines, Inc. (C.D. Cal. 2014) 2014 WL 2931169 (De Santiago), an unpublished federal district court decision. In those cases, the plaintiffs were subjected to racially derogatory comments in the workplace, which the courts found could be considered extreme and outrageous conduct.

In Alcorn, the plaintiff alleged the defendant, who was in a position of authority over the plaintiff, was aware of his particular susceptibilities to emotional distress and intentionally humiliated him to cause him such distress. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 498-499.) Plaintiff argues she likewise was particularly susceptible to emotional distress because she was a woman in an environment that was exclusively male and was viewed as being different. Plaintiff asserts Defendant knew of this and used it against her.

In De Santiago, the court found the defendants’ verbal attacks against the plaintiff could be construed as so extreme as to exceed all bounds of what is usually tolerated in a civilized community to form a basis for an intentional infliction of emotional distress claim. (De Santiago v. Greyhound Lines, Inc. (C.D. Cal. 2014) 2014 WL 2931169 at p. 17.) Plaintiff contends Defendant, on numerous occasions, made demeaning and despicable comments about her gender and sexual orientation that could form a sufficient basis for her claim. She concludes she has alleged facts and circumstances showing Defendant’s conduct was extreme and outrageous.

Despite Plaintiff’s numerous assertions that Defendant’s conduct committed before May 21, 2016, shows a pattern of conduct that should be considered in determining whether Defendant’s conduct on May 23, 2016, is outrageous, any actions committed before May 21, 2016 are barred by the statute of limitations, as stated above. Accordingly, the Court can only consider Defendant’s alleged conduct that occurred on May 23, 2016. Plaintiff has not demonstrated that such conduct alone constitutes extreme and outrageous conduct. Plaintiff’s reliance on Alcorn and De Santiago is unpersuasive. Unlike the plaintiff in Alcorn, Plaintiff did not allege she was particularly susceptible to emotional distress in the complaint. (See SKF Farms v. Super. Ct. (1984) 153 Cal.App.3d 902, 905 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleadings or are judicially noticed.”].) Further, unlike in Alcorn and De Santiago, Plaintiff has not alleged how Defendant’s one act of laughing accompanied by his one vague question of “yeah, you see?” could be construed as so extreme as to exceed all bounds of what is usually tolerated in a civilized community.

As such, Plaintiff has not alleged Defendant’s conduct that occurred on May 23, 2016, is extreme and outrageous behavior to state a claim for intentional infliction of emotional distress.

  1. Conclusion

For these reasons, the demurrer to the complaint on the ground of failure to state sufficient facts is SUSTAINED with 10 days’ leave to amend.

  • Motion to Strike

Given the Court’s ruling sustaining Defendant’s demurrer to the complaint, Defendant’s motion to strike portions of the complaint is MOOT.

[1] Apparently out of an abundance of caution, Defendant also addresses the continuing violations doctrine in his memorandum in anticipation that Plaintiff will invoke it to demonstrate her cause of action accrued within the limitations period. But Plaintiff does not ultimately make this argument in opposition. Accordingly, the Court will not analyze this issue further.