Preview
ELECTRONICALLY FILED
superior Court of California,
- County of Placer
SERENA M. WARNER, ESQ., SB No. 264799 By:
11/03/2020
LaurelSanders, Deputy Clerk
GARRETT L. SEUELL, ESQ., SB No. 323175
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ANGELO, KILDAY & KILDUFF, LLP
Attorneys at Law
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601 University Avenue, Suite 150
Sacramento, CA 95825
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Telephone: (916) 564-6100
Telecopier: (916) 564-6263
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Attorneys for Defendants ROSEVILLE J OINT UNION HIGH SCHOOL DISTRICT,
JENNIFER LEIGHTON, and JEFF EVANS
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PUBLIC ENTITY, FILING FEES WAIVED PURSUANT TO GOV’T CODE §6103
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF PLACER
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HOSSEIN KHATAMI, Case No.: SCV0044602
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Plaintiff, MEMORANDUM OF POINTS AND
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AUTHORITIES ISO DEFENDANTS
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vs. ROSEVILLE JOINT UNION HIGH
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SCHOOL DISTRICT, JENNIFER
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ROSEVILLE JOINT UNION HIGH SCHOOL LEIGHTON, AND JEFF EVANS’
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DISTRICT, et al., . ‘DEMURRER TO SECOND AMENDED
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COMPLAINT
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Date: December 17, 2020
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Time: 8:30AM
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SAC Filed: Sept. 30, 2020
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Trial Date: _ Unassigned
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS ROSEVILLE JOINT
UNION HIGH SCHOOL DISTRICT, JENNIFER LEIGHTON, AND JEFF EVANS’ DEMURRER
TO SECOND AMENDED COMPLAINT
TABLE OF CONTENTS
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T. SUMMARY OF COMPLAINT ......cecsscsesessecesseseecessescescessoevsensescesscessenscesassesceeseseescassssssaueeeaees
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IL. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS oo. cceeseseseeeeeeereeeeeeeeeee2
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A. THE TORT ELEMENTS .....cccssscsssssceesceecescsecseeseseenecnecoensrscnecnecsessenseessseavsevscessssanesesasseeseaseageass
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B. PERSONNEL DECISIONS DO NOT QUALIFY AS OUTRAGEOUS ....esescecssesesenseetseeeserenerssseseeees
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C. THE STATEMENT WAS TOO GENERAL TO BE OUTRAGEOUS
D. WORKER’S COMPENSATION IS THE EXCLUSIVE REMEDY u....ccsessscsssssscsecsecsesseterserevenscaseeeers
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E. SEVERE DISTRESS IS INADEQUATELY DESCRIBED AND COUNTER-INDICATED ......seeseeseesreeee
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I. THE AMENDMENTS COULD NOT, AND DID NOT, IMPROVE THE ASSOCIATIONAL
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THEORIES o...cececccsccsessescseseseresecsssesevessencsesenensasseecascacaneassevessencoscassasensesenescnsnensccsncesscossasnessecaasasens
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A. THE SAC REMAINS FACTUALLY AMORPHOUS AND INCOMPLETE......scssssssssssssesesetseeseeeeeteees
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B. THE ASSOCIATIONAL THEORIES REMAIN SUBSTANTIVELY HOLLOW ........ccscesececeeesoeseeeeee
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1. Legal Principles Pertaining to Associational Discrimination ..
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2. The Association Must Exist at The Time Of Adverse Action
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C. A TERMINATION STATEMENT CANNOT CREATE A HOSTILE ENVIRONMENT 00... eseseseseeetseee
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1. A Single Unpleasant Remark Is Inadequate...eee Levesscescaeseseacsesesesenensens
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2. The Statement Ended the Work Relationship 0.0.0.0... sccessssesenseseseerssesenesescessescseenensees
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IV. THE EIGHTH COUNT LACKS PREDICATE OFFENSES AND TIMING... .. 10
V. CONCLUSION Wu. eeccecseesesesececeseceneeneecsereneneecsessecnssassieesseaenessusnsssusvessseacsnsesesusesssueacasseaseneesoes
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
TABLE OF AUTHORITIES
CASES
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Angie M. v. Superior Court (1995) 37 Cal. App.4th 1217. ccc ceesescsessseeseneteseassesescseseeseneee
5
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Bogard v. Employers Casualty Co. (1985) 164 Cal App.3d 602.0... sssessesiessescseeeseesseseesseeeees
5
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Brennan v. Townsend & O'Leary Enterprises, Inc. (2011) 199 Cal. App.4th 1336.00. eeeeeeeeee
9
Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028 oe 7
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Cole y. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148 oc cecsessctsssssessneseceseeesesseessseetaseesasees
4
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Cornell v. Berkeley Tennis Club (2017) 18 Cal App.Sth 908 woe eesesessessseacsesesescsseeecennees
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Dickson v.Burke Williams, Inc. (2015) 234 Cal. App.4th 1307.00... cccsesesssesssessneessenescseeresses
10
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Fletcher v. Western National Life Insurance Company (1970) 10 Cal. App.3d 376 ee 4
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Holcomb v.Tona College (2d Cir. 2008) 521 F.3d 130 ec iceecsesssessesesesereeeseecenscseesessesreeserees
7
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Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal. App.4th 798 .....ccccceseceeseeseeeneeee6
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Hughes Vv.Pair (2.009) 46 Cal 4th 1035 ec csecssseessevcssssseseassasasesesssscecesseessesseesssesseseeesseneseensees
4
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Janken v. GM Hughes Electronics (1996) 46 Cal. App.4th 55.0... cccscsssseesseeseeetesesesseeeeaes 3
Kelleher v. FredA. Cook, Inc. (2d Cir. 2019) 939 F.3d 465 w..eccsesceesssessseeerseecssesseessessessseneee
7
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Light v. Department of Parks & Recreation (2017) 14 Cal. App.Sth 75...
ccscscscesessesseereenes 3,4
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Livitsanos v. Superior Court (1992) 2 Cal. 4th 744.0. ccscsccsescssseeassessssureessersseaseesseesseseesssecsseee
4
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Loving v. Virginia (1967) 388 US. Lisscscsccsecsssssesssssesssessesesseeessessevesecesserenesesnsreseseseseesereete
7
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Lyle v. Warner Bros. Television Productions (2006) 38 Cal 4th 264.0... ccscseeseseseeseetesseeeeeseees
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‘Maselli vy.Tuckahoe Union Free Sch. Dist. (S.D.N.Y. Sept. 27, 2018) 2018 WL 4637003 ..........
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McGough v. University of San Francisco (1989) 214 Cal App.3d 1577. ..ccccccesccseeceseccssteseees2
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Meritor Sav. Bank, FSB v. Vinson (1986) 477 U.S. S7osccccceccsscesscssssreensceenesesssreenesesensedeseneeenees
9
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NY
Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243 ou. ccesensseseseenenetisseesenssenesseeseerees
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Potter y. Firestone Tire & Rubber Co, (1993) 6 Cal 4th 965...
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
Rees v. Office of Children & Youth (W.D. Pa. 2010) 744 F. Supp. 2d 434... cceceessaeeenenes7
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Reno v. Baird (1998) 18 Cal.4th 640 ...sccssssssessesseccesessensersrsscneenevensanenssnsasssseasseasuesssaasassecessensenee
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Roby v. McKesson Corp. (2009) 47 Cal.4th 686 occ ccceeeseessseececssesseeseaseesseeseseedaseneassseneseeeeaes
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Rogers v. EEOC (Sth Cir. 1971) 454 F.2d 234 oc eccsesssseesesessenessseasesessnessseseseseerecereensenesneesenses
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Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal. App.4th 635.0... cccseesteeeeseeee 7
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Scotch v.Art Institute of California (2009) 173 Cal. App.4th 986...
cescccseceseesseeseereeeeeanees 10
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Serri v. Santa Clara University (2014) 226 Cal App.4th 830 oc cccccccssccsseserrsessssereersensseceenneens
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Shoemaker v. Myers (1990) 52 Cal.3d 1.csccscsssesesesereressserenensnenesensssnssesesscnssenseensneesseneaesnassenseenes
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Unterberger y. Red Bull North America, Inc. (2008) 162 Cal. App.4th 414... ecsessesecneeenenee 2
Wilson v.Hynek (2012) 207 Cal App.4th 999 ooocccececseeecceereneeneeenseeneesseeseaniescensnsseneneeeeees
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Wong v.Jing (2010) 189 Cal.App.4th 1354 scscscscsssscessessnsssesessesessstnstsassneterstessinesecesenee
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STATUTES
Cal. Code Of Regs., § 11034(E)(2)(A) oe eeescesescsecsctenesssseersesesnseseensesnescseseseseecsesssneeeeaseeaseeneeaseee
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Government Code § 12923(D) wicicccccccsseccseesensrenssseenscseseesaseesescagsesenecsnseresessssensrenssensneneaneneeneees
Government Code § 12926(0) .....ccsessesecceeressescecsereesensscensaesasassssesesessssaeesssesenesucenseesnesscessenenecnenes
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Government Code § 12940(k) .
Labor Code § 3601(a)(1)-(2) oo. sesseessesescesesresssesessesssessseeseecensessesssneassessssesesssesseaesessessseaseseeesnenees
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
As stated in the notice of demurrer and demurrer, Defendants now challenge the Third and
Sixth — Eighth counts.
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I. SUMMARY OF COMPLAINT
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Excepting the new grief-related matter addressed by Defendants’ motion to strike, the
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historical allegations remain essentially unchanged from the FAC — the SAC merely adds various
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details of those same events that do not impact the demurrer issues. Those events are: following
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the suicide of Khatami’s daughter (a former District student) inNovember of 2018 due to drug use
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and depression ({ 17, 25), Roseville Joint Union High School District hired Khatami as a Granite
Bay High School football coach on January 29, 2019. ({ 19.)! After Khatami completed various
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training programs (at unspecified expense to himself), he commenced coaching incoming
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freshman and received a coach uniform ({ 20); Jeff Evans introduced him to the freshman team as
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offensive coordinator on March 6, after which Khatami continued to work as a coach (¥ 21) until
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March 25 when Evans, in the presence of another managing employee (Roza), told Khatami he
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was being fired “due to domestic violence charges and detention violations in his background
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check” ({ 23) and “because [sic] the recent suicide death of Plaintiff's daughter, E.K., due to her
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disabilities” (4 24). Khatami stated he’d never been convicted of any crime and “questioned”
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Evans’ reference to his daughter’s death but Evans repeated the factors as the deceased daughter
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and the domestic violence arrest. ({] 23-24.) Evans concluded. the meeting by telling Khatami
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that school principal Leighton and athletic director Healy supplied Evans with his termination
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reasons and thus that Khatami should direct any questions to them. (4]27.) Khatami so queried
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Leighton later that day but received a nebulous response. ({ 28.) Several weeks later, while
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Khatami sought coaching employment by Oakmont High, itsfootball coach told Khatami a Granite
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Bay employee (Becker) “intentionally blocked Plaintiff's potential employment with Oakmont.”
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( 29.)
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Based on these events, Khatami seeks compensatory and punitive damages based on eight
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counts. Those challenged by this demurrer are: intentional infliction of emotional distress by
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1 Although the SAC initiallyalleges “Defendants” learned of the death in “early 2019,” which is ambiguous
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as to whether that knowledge was pre-hiring, itnext confirms the information as pre-hiring by alleging
Khatami discussed his related grief with Evans during the hiring process. (§ 22.)
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
referencing the death during termination (Third); associational disability discrimination in
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violation of Government Code § 12940(a) (Sixth); associational disability harassment in violation
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of Government Code § 12940) (Seventh); and failure to prevent discrimination and harassment
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in violation of Government Code § 12940(k) (Eighth). The Sixth and Eighth counts target solely
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District, whereas the Third and Seventh attack all three defendants.
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Il. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
A. THE TORT ELEMENTS
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The elements of intentional infliction of emotional distress are: (1) extreme and outrageous
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conduct by the defendant with the intention of causing, or reckless disregard of the probability of
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causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and
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(3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct;
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with “outrageous” defined as being so extreme as to exceed all bounds of that tolerated in a
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civilized community. (Wilson v. Hynek (2012) 207 Cal.App.4th 999, 1009.) Where no related
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factual disputes exist, the court should determine as a matter of law whether the conduct reached
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the level of “outrageous.” (Unterberger v.Red Bull North America, Inc. (2008) 162 Cal.App.4th
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414, 423 [“the court is to determine, in the first instance, whether conduct may reasonably be
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regarded as so extreme and outrageous as to permit recovery”]; McGough v. University of San
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Francisco (1989) 214 Cal.App.3d 1577, 1587.)
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B. PERSONNEL DECISIONS Do. NoT QUALIFY AS OUTRAGEOUS
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The sole act identified in the Third count as “outrageous” is “referencing Plaintiff's
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daughter’s death during his termination.” (SAC, 757. See 456 [“conduct of referencing Plaintiffs
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daughter’s death isoutrageous”].) The actual statement described isthat District was terminating
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him, in part “because [sic]the recent suicide death of Plaintiff's daughter due to her disabilities.”
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(124)
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However, the historical averments identify Evans as the sole speaker. (4 24.) Leighton’s
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only alleged connection to the death reference is that she informed Evans the suicide was a
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termination factor. (§ 27.) Thus Leighton cannot discern whether the Third count targets her
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factoring of the suicide as a termination ground, or rather focuses on her as origin of Evans’
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
statement to Khatami. The former would not suffice because personnel management decisions do
not normally rise to the level of outrageous, unless they stem from illicit bias, in which event
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discrimination is the correct theory of liability. (Janken v. GM Hughes Electronics (1996) 46
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Cal.App.4th 55, 80. See Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.Sth 908, 945
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[presence of factual issue as to discrimination claim did not require reversal of ITED claim where
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facts did not show outrageous conduct]. See also Light v. Department of Parks & Recreation
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(2017) 14 Cal.App.5th 75, 99-102 [citing Janken and explaining that ITED cannot be based on co-
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employee acts due to workers compensation unless they violate FEHA].)
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Leighton’s potential liability for telling Evans the death was a termination ground isnext
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discussed, in tandem with Evans’ liability.
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Cc, THE STATEMENT WAS TOO GENERAL TO BE OUTRAGEOUS
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The IIED theory seems premised on the notion that any reference to the death during the
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termination was per se outrageous. But the SAC states Khatami discussed that very subject with
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Evans during hiring, without attaching any blame or intrusion to that conversation. (7 22.) The
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Defendants also allegedly knew Khatami suffered from severe grief because of that disclosure (7
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26, 69); his grief and corresponding need for a leave of absence factored into the termination
decision ({ 74). For if the District were to find someone recently hired to coach teenage football
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(a position that requires considerable emotional stability) unsuited for that responsibility because,
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five months after a death, he deemed himself stilltoo distraught to even continue working would
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be understandable or, at worst, debatable, and so well-short of outrageous.
The subject statement’s generality also disqualifies it as sufficiently extreme. Although
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some specific statements about the daughter’s death could arguably have risen to the requisite
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extremity for an ITED claim (e.g., “she was a horrid person and the world is better off without
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her’), others would have been undeniably proper (e.g.,“because of your grief, you are too troubled
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to effectively lead these boys”) or susceptible to mixed reactions (e.g.,“your inability to effectively
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parent your daughter eroded our confidence that you can teach teens”). Accordingly, a general
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reference to the death cannot suffice.
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3.
MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
D. WORKER’S COMPENSATION IS THE EXCLUSIVE REMEDY
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As stated by Light, supra, absent a separate statutory remedy, worker’s compensation
forms the exclusive remedy for emotional harm sustained by an employee in the course of
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employment and caused by a co-employee or the employer. Thus an employee’s emotional
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distress arising from the employer’s actions as such, even ifoutrageous, isnot compensable in fort
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damages from the employer. (Cole v. Fair Oaks Fire Prot. Dist. (1987) 43 Cal.3d 148, 160. See
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Livitsanos v.Superior Court (1992) 2 Cal.4th 744, 752-753 [exclusive remedy doctrine applies
even if injury is purely emotional].) As termination of employment falls within the scope of
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worker’s compensation, the exclusive remedy doctrine applies to tort damages flowing from the
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discharge. (Shoemaker v. Myers (1990) 52 Cal.3d 1, 18 [“Nonconsensual termination of an
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employment relationship is indistinguishable from the kinds of actions enumerated in Cole and
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must therefore also be considered a normal and inherent part of employment”] and 26 [ITED
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damages barred by exclusive remedy].)
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The exclusive remedy doctrine also governs emotional distress inflicted by another
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employee absent either a “willful and unprovoked physical act of aggression” or intoxication.
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(Labor Code § 3601(a)(1)-(2).) The SAC alleges neither physical aggression nor intoxication by
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Evans or Leighton.
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E. SEVERE Distress Is INADEQUATELY DESCRIBED AND COUNTER-INDICATED
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Even if Khatami could obtain a remedy beyond worker’s compensation, the Third count
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would remain inadequate. The California Supreme Court “thas set a high bar” on the element of
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distress severity — itmust be so substantial or enduring in nature that “no reasonable person should
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be expected to endure it.” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051 [quoting Potter v.
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Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004].) The trial court determines whether the
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facts indicate severe emotional distress, in which event the jury decides whether that injury actually
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occurred as alleged. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1376 [quoting Fletcher v.
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Western National Life Insurance Company (1970) 10 Cal.App.3d 376, 397].)
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The SAC alleges Khatami suffered “extreme” distress when his daughter died, described
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as “anxiety and depression, humiliation, panic attacks, grief, loss of enjoyment, ashamed and
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
mental suffering,” persisting up to the time of termination such that he was disabled and needed a
medical leave, which sadness Evans’ statement re-“triggered.” (FJ 56-57, 69-70, 72, 74.) Thus,
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unlike a standard WED claim where the distress originated from the outrageous conduct, here the
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putatively severe distress pre-existed.
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Two problems emerge from these continuing injury allegations. The firstissue remains
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from the prior pleading, that the ailment list describes only types of distress (here various grief
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manifestations), and not their extent or impact after Evans’ statement — simply using the terms
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“extreme” and “severe” is insufficient. (See Angie M. v. Superior Court (1995) 37 Cal.App.4th
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1217, 1227 [calling distress “severe” is insufficient; “Angie has pleaded no facts demonstrating
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the nature, extent or duration of her alleged emotional distress”]; Bogard v. Employers Casualty
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Co. (1985) 164 Cal.App.3d 602, 618 [“appellants failed to allege facts which indicate they suffered
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severe emotional distress”].)
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The grief’s pre-existence renders the lack of severity facts especially prominent. Pre-
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existence also negates the significance of the averment his grief continues “to this day.” (4 56.)
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That emotional upset from an independent source merely continued after tortious conduct occurred
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does not harmonize with the judicial requirement that an outrageous action must have equally high
impact on its target to become actionable as ITED. No facts alleged indicate Khatami’s debilitating
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grief worsened because of Evans’ statement; indeed, Khatami admits his emotional state
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significantly. improved in that he went from needing a leave of absence to readiness to resume
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working just three weeks later. (4 29.)
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II. THE AMENDMENTS COULD NOT, AND DID NOT, IMPROVE THE
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ASSOCIATIONAL THEORIES
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A. Tue SAC REMAINS FACTUALLY AMORPHOUS AND INCOMPLETE
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The Sixth and Seventh counts allege District (Sixth) and allDefendants (Seventh) violated
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Government Code § 12940(a) and Gj) by, respectively, discriminating against and harassing
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Khatami because of his “relationship” with his deceased and formerly disabled daughter. In its
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10/9/20 order, this Court deemed the supporting factual averments amorphous and insufficiently-
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related to his termination or to a hostile work environment. (Ex. A, to Order, p. 7.) The SAC does
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MEMORANDUM OF POINTS AND AUTHORITIES ISO DEFENDANTS’ DEMURRER TO SECOND
AMENDED COMPLAINT
not materially improve in these respects.
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The only new factual averments are details of when Khatami’s daughter was a District
student (4 17) and that “Defen