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Beasley v. Desai

Beasley v. Desai
05/24/13






Beasley v










Beasley v. Desai

















Filed 5/13/13 Beasley v. Desai CA2/2

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>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



SECOND
APPELLATE DISTRICT



DIVISION
TWO




>






JONATHAN BEASLEY et al.,



Plaintiffs and Appellants,



v.



AMIR M. DESAI,



Defendant and Respondent.




B239941



(Los Angeles
County

Super. Ct.
No. NC055957)






APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County.

Joseph E. DiLoreto, Judge.
Appeal treated as petition for extraordinary writ. The petition for extraordinary writ is
denied.



Law Offices
of James A. Otto, James A. Otto; Regina
Ashkinadze for Plaintiffs and Appellants.



Kassinove
& Raskin, Edward B. Raskin, Joshua M. Caplan for Defendant and Respondent.



___________________________________________________

Plaintiffs attempt to appeal from an order sustaining a
demurrer without leave to amend.
Although such an order is not appealable, we exercise our discretion to
treat plaintiffs’ appeal as a petition for an href="http://www.fearnotlaw.com/">extraordinary writ.

We find
that plaintiffs’ causes of action against their former supervisor for
employment-based discrimination-related claims fail, primarily because, given
the facts alleged, there is no individual liability for such claims. Therefore, the demurrer was properly
sustained without leave to amend.

FACTUAL AND PROCEDURAL BACKGROUND

Allegations

Plaintiffs
and appellants Jonathan Beasley, Irina Masharova, Anna Rshtouni, Marcelo
Pineda, Chuck Price, Yuri Grishko, Tsung-Hsien Shen, Tim Luk, David De Hilster,
Lily Bumatay, Partha Choudhury, Tim Nguyen, James Nguyen, Edward Duong, Ismail
Guzey, Steve Mo, Bonita Shok, Karen Ku, and Adonis Villanueva are all former
employees of Molina Healthcare, Inc. (Molina).
Appellants worked in Molina’s information technology (I.T.) department
as security analysts or computer programmers.
All are American citizens or green card holders, and all are over the
age of 40.href="#_ftn1" name="_ftnref1" title="">[1]

At Molina,
appellants reported to defendant and respondent Amir Desai, the chief
information officer at the time. Desai
controlled all aspects of hiring for the I.T. department, and all managers
under his supervision required his approval to hire personnel. Beginning in around 2007, Desai instituted a
plan to replace appellants and similarly situated employees with Indian nationals,
holding “H-1B visas,” supplied by Cognizant Technology Solutions, Inc.
(Cognizant).href="#_ftn2" name="_ftnref2"
title="">[2] Desai executed his plan over the course of
several years, eventually displacing Molina’s former employees (including
appellants) with H-1B contractors.
Overall, approximately 100 employees were terminated and replaced by
Indian workers. The makeup of Molina’s
I.T. department changed from being diverse in ethnic background and age to
being composed almost entirely of Indian nationals under the age of 40. Appellants allege, on information and belief,
that Desai received “kickbacks” and “other financial incentives” from Cognizant
for replacing Molina’s employees with H-1B contractors.

In
connection with its placement of H-1B contractors at Molina, Cognizant
certified, to the United States Department of Labor, that there were no
qualified United States
citizens or residents who could perform the job functions sought for the
compensation offered by Molina. Desai
knew that Cognizant’s certification was false but approved it anyway. On January 13, 2010, one day after the
Department of Labor approved a Cognizant application made on behalf of Molina
seeking visas for 40 H-1B contractors, Molina (through Desai) fired 40
competent I.T. department employees, including appellants, to make way for the
contractors.

Procedural Background

Appellants
filed a lawsuit against Desai as well as Molina and Cognizant.href="#_ftn3" name="_ftnref3" title="">[3] In September 2011, Desai’s demurrer to the
first amended complaint was sustained with leave to amend.

Plaintiffs
filed their second amended complaint on October 17, 2011.
It alleged the following causes of action against Desai: (1) violation of California Constitution
article I, section 8—national origin discrimination; (2) violation of Civil Code
section 51; (3) intentional infliction of emotional distress; (7) age
discrimination in violation of Government Code section 12940;href="#_ftn4" name="_ftnref4" title="">[4] (8) failure to take all reasonable steps to
prevent discrimination in violation of Government Code section 12940,
subdivision (k); (9) retaliation in violation of Government Code section 12940,
subdivision (h); and (13) national origin discrimination in violation of
Government Code section 12940.

Desai filed
a demurrer to the second amended complaint.
On February 8, 2012,
the trial court sustained the demurrer without leave to amend.

DISCUSSION

I. Appeal and Review

Appellants
attempt to appeal from the trial court’s February 2012 order sustaining the
demurrer, which is nonappealable. (>Los Altos> Golf & Country Club v. >County> of Santa Clara (2008) 165 Cal.App.4th
198, 202.) Furthermore, it appears that
all appellants, except for Shok and Villanueva, are cross-defendants in a
cross-complaint filed by Desai which is still being litigated. Normally, an unresolved cross-complaint
defeats appealability. (>Angell v. Superior Court (1999) 73 Cal.App.4th
691, 698.) We, however, have discretion
to save a premature appeal from an order sustaining a demurrer (see >Smith v. Hopland Band of Pomo Indians
(2002) 95 Cal.App.4th 1, 3, fn. 1), and, in extraordinary circumstances, to
treat an appeal from a nonappealable order as a petition for extraordinary writ
(Angell, at p. 698). In this case, because Shok and Villanueva are
effectively finished with the litigation in the trial court except for a
judgment of dismissal, and because their claims are identical to those of the
other appellants and the issues are fully briefed, judicial economy will best
be served by treating this appeal as a petition for extraordinary writ, so that
we may decide the viability of all appellants’ allegations against Desai in one
sitting. (See Justus v. Atchison (1977) 19 Cal.3d 564, 568.)

An
appellate court reviews a ruling sustaining a demurrer de novo, exercising
independent judgment regarding whether the complaint states a cause of action
as a matter of law. (Desai
v. Farmers Ins. Exchange
(1996) 47 Cal.App.4th 1110, 1115.) We give the complaint a reasonable
interpretation, treating the demurrer as admitting all material facts properly
pleaded, but not assuming the truth of contentions, deductions or conclusions
of law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) A demurrer tests the legal sufficiency of the
complaint. (Hernandez v. City of Pomona (1996) 49 Cal.App.4th 1492, 1497.) As such, we are not concerned with the
difficulties a plaintiff may have in proving the claims made in the
complaint. (Desai, at p. 1115.)

II. Fair Employment and Housing Act Claims

Appellants
allege four causes of action against Desai arising under the Fair Employment
and Housing Act (FEHA) (Gov. Code, § 12900 et seq.): age discrimination, failure to take
reasonable steps to prevent discrimination, retaliation, and national origin
discrimination.

Government
Code section 12940 (section 12940) lays out a variety of unlawful employment
practices. One of these is for an
employer to discriminate, by discharge or other means, against a person because
of his or her age or national origin. (§
12490, subd. (a).) Another, generally
referred to as “retaliation” (Jones v.
Lodge at Torrey Pines Partnership
(2008) 42 Cal.4th 1158, 1161-1162 (>Jones)), is “‘[f]or any employer, labor
organization, employment agency, or person to discharge, expel, or otherwise
discriminate against any person because the person has opposed any practices
forbidden under this part or because the person has filed a complaint,
testified, or assisted in any proceeding under this part.’” (§ 12490, subd. (h).) The other unlawful practice at issue in this
case is “[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.”
(§ 12490, subd. (k).)

Our Supreme
Court has somewhat narrowly defined the class of defendants subject to
liability under Government Code section 12940.
Reno> v. Baird (1998) 18 Cal.4th 640, 643 (>Reno), held
that employers may be sued under the FEHA for employment discrimination, but
individuals may not be. >Jones extended this holding to
retaliation cases: “We conclude that the
same rule applies to actions for retaliation that applies to actions for
discrimination: The employer, but not
nonemployer individuals, may be held liable.”
(Jones, supra, 42 Cal.4th 1158, 1160.)

In both >Reno and >Jones, the plaintiff sought to sue an individual supervisor in addition
to the employer itself. Plaintiffs here
have done the same thing, suing their employer, Molina, and their former
supervisor at Molina, Desai. In
recognition of Reno
and Jones, however, plaintiffs do not
just label their suit against Desai as one against an individual, but also
attempt to characterize Desai as an “employment agency.” Employment agencies are subject to the
retaliation and failure to take reasonable steps provisions of section 12940,
and, in certain circumstances, may be liable for discrimination. (§ 12940, subds. (h, k, d).)

Under the
FEHA, “‘[e]mployment agency’ includes any person undertaking for compensation
to procure employees or opportunities to work.”
(Gov. Code, § 12926, subd. (e).)
Plaintiffs argue that they have pled the requisite facts to treat Desai
as an employment agency subject to FEHA liability. The FEHA causes of action in plaintiffs’
second amended complaint each state, “[f]or the purposes of this cause of
action, Defendants Cognizant and Desai were employers of the plaintiffs and/or
an employment agency,” allegations
undercut by an earlier, incorporated allegation that Desai “is, and at all
relevant times relevant herein, was an individual residing in Los Angeles
County, California.” Plaintiffs further
contend that they pled Desai is an employment agency by alleging that he
procured employment for Cognizant-affiliated H-1B contractors and that he was
paid by Cognizant for doing so.

At first
blush, this contention appears to have some merit. But when one considers the underlying reasons
for the holdings in Reno and >Jones, as well as the relationship
between plaintiffs and Desai and their reasons for suing him, it becomes clear
that plaintiffs’ labeling of Desai as an employment agency is an ultimately
unsuccessful attempt to evade the immunities afforded to individual
supervisors.

In finding
that supervisory employees are not subject to FEHA-based liability for discrimination,
Reno cited approvingly to >Janken v. GM Hughes Electronics (1996)
46 Cal.App.4th 55 (Janken), in which
we discussed a number of issues militating against the imposition of personal
liability. We considered that many
actions necessary to the performance of management duties could, from the
viewpoint of a potential plaintiff, have the appearance of discrimination. Such actions include “hiring and firing, job
or project assignments, office or work station assignments, promotion or
demotion, performance evaluations, the provision of support, the assignment or
nonassignment of supervisory functions, deciding who will and who will not
attend meetings, deciding who will be laid off .” (Id.
at pp. 64-65.) We contrasted these
necessary supervisorial duties against acts of harassment (for which an
employee may be held individually liable), which “consist[] of conduct outside
the scope of necessary job performance, conduct presumably engaged in for
personal gratification, because of meanness or bigotry, or for other personal
motives.” (Id. at pp. 63-64.) We
further noted how an incongruity would arise if individual supervisors could be
liable for FEHA-based discrimination claims while small employers could not,
since “employer” is defined in Government Code section 12926, subdivision (d)
as including “‘any person regularly employing five or more persons.’” (Janken,
at p. 71.) Moreover, we discussed how
imposing personal liability on supervisory employees for discrimination would
create conflicts of interest and chill effective management, as supervisors
would be motivated to make personnel decisions on the basis of what course of
action would least likely subject them to a FEHA-based suit, even if such
decisions may not be in the best interests of the company. (Id.
at pp. 72-74.)

Two years
after Janken, the Supreme Court further clarified the rule against imposing
FEHA-based liability on supervisors for discrimination: “We do not decide merely whether individuals
should be held liable for their wrongdoing, but whether all supervisors should
be subjected to the ever-present threat of a lawsuit each time they make a
personnel decision. Litigation is
expensive, for the innocent as well as the wrongdoer. By limiting the threat of lawsuits to the
employer itself, the entity ultimately responsible for discriminatory actions,
the Legislature has drawn a balance between the goals of eliminating
discrimination in the workplace and minimizing the debilitating burden of
litigation on individuals.” (>Reno,
supra
, 18 Cal.4th at p. 663.) Later,
in Jones, the Supreme Court held that
“Reno’s rationale for not holding individuals personally liable for
discrimination applies equally to retaliation.”
(Jones, supra, 42 Cal.4th at p. 1164.)

Viewed in
the context of this controlling law, plaintiffs have failed to state a
viable-FEHA based claim against Desai.
Even though the second amended complaint contains allegations by which
one could potentially characterize Desai as an “employment agency” (as that
term is defined in the FEHA), these are not the allegations upon which
plaintiffs base their claims of liability against Desai. The allegations make clear that each
plaintiff’s relationship with Desai was one of employee and supervisor, and
plaintiffs seek damages against Desai because they were terminated by him and
replaced by another person. Firing and
hiring—the acts upon which Desai’s claimed liability are based—are essential
management duties.

As we
stated in Janken, “Making personnel
decisions is an inherent and unavoidable part of the supervisory
function.” (Janken, supra, 46
Cal.App.4th at p. 64.) In terminating
plaintiffs, Desai was exercising the authority vested in him by Molina. Like any supervisor, were Desai hindered from
terminating an employee or making other managerial decisions by the prospect of
facing individual liability, he would lose the ability to perform his job
adequately. The allegations that Desai
helped place foreign contractors are not relevant to this analysis. Simply put, if Desai had not fired
plaintiffs, there is no reason to presume that he would be a defendant in this
lawsuit and, under FEHA, Desai, as plaintiffs’ former supervisor, cannot be
liable for making the decision to fire them, even for an improper reason. The employer can be held liable for
discriminatory and retaliatory conduct under section 12940, but a supervisory
employee cannot. (Reno, supra, 18 Cal.4th
at p. 643; Jones, >supra, 42 Cal.4th at p. 1160.) The demurrer, therefore, was properly
sustained as to the FEHA-based causes of action.

III. Article I, Section 8

Plaintiffs’
claim against Desai for violation of article I, section 8 of the California
Constitution (hereinafter, article I, section 8) is pled in similar terms to
the FEHA causes of action. Plaintiffs
seek lost wages and other damages as a result of Desai’s alleged
discrimination.

Article I, section 8 provides: “A person may not be disqualified from
entering or pursuing a business, profession, vocation, or employment because of
sex, race, creed, color, or national or ethnic origin.” Plaintiffs fail to identify any prior
reported opinions upholding the validity of a private cause of action for
damages premised solely on article I, section 8. While this omission by itself does not
necessarily prevent plaintiffs from asserting such a cause of action, they must
substantiate their ability to make the claim.


In >Katzberg v. Regents of the University of
California (2002) 29 Cal.4th 300 (Katzberg),
and in its companion case Degrassi v.
Cook
(2002) 29 Cal.4th 333, the Supreme Court examined “whether an
individual may bring an action for money damages on the basis of an alleged
violation of a provision of the California Constitution, in the absence of a
statutory provision or an established common law tort authorizing such a damage
remedy for the constitutional violation.” (Katzberg,
at p. 303; Degrassi, 29 Cal.4th at p.
335.) Katzberg established a framework to decide the issue: “First, we shall inquire whether there is
evidence from which we may find or infer, within the constitutional provision
at issue, an affirmative intent either to authorize or to withhold a damages
action to remedy a violation. In
undertaking this inquiry we shall consider the language and history of the
constitutional provision at issue, including whether it contains guidelines,
mechanisms, or procedures implying a monetary remedy, as well as any pertinent
common law history. If we find any such
intent, we shall give it effect.

“Second, if
no affirmative intent either to authorize or to withhold a damages remedy is
found, we shall undertake the ‘constitutional tort’ analysis adopted by >Bivens [v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388] and its
progeny. Among the relevant factors in
this analysis are whether an adequate remedy exists, the extent to which a
constitutional tort action would change established tort law, and the nature
and significance of the constitutional provision. If we find that these factors militate
against recognizing the constitutional tort, our inquiry ends. If, however, we find that these factors favor
recognizing a constitutional tort, we also shall consider the existence of any
special factors counseling hesitation in recognizing a damages action, including
deference to legislative judgment, avoidance of adverse policy consequences,
considerations of government fiscal policy, practical issues of proof, and the
competence of courts to assess particular types of damages.” (Katzberg,> supra, 29 Cal.4th 300, 317.)

In arguing
that they should be allowed to assert an article I, section 8 claim, plaintiffs
ask us to declare a “new cause of action for national origin or ethnic origin
discrimination.” Despite this weighty
request, plaintiffs fail to make even a rote attempt to analyze the propriety
of their claimed “new” cause of action under the factors explicitly required by
Katzberg. Given these circumstances, we are not
inclined to grant plaintiffs’ request.
(See In re Marriage of Falcone
& Fyke
(2012) 203 Cal.App.4th 964, 1004 [“‘appellate court can treat as
waived or meritless any issue that,
although raised in the briefs, is not
supported by pertinent or cognizable legal argument or proper citation of
authority
’”].)

In any
event, our own analysis of the issue leads us to the conclusion that the
establishment of a damages claim for violation of article I, section 8 is not
warranted, at least as the matter appears in this appeal. As we have found no evidence of an affirmative
intent either to authorize or to withhold a damages action to remedy a
violation of article I, section 8, we proceed to the second step of the >Katzberg analysis and examine, among
other considerations, whether an adequate remedy already exists. (Katzberg,
supra, 29 Cal.4th at p. 325.) We conclude that alternative remedies do
exist. A multitude of cases has found
that a common law tort claim for termination in violation of public policy may
be premised upon a violation of article I, section 8. (See Badih
v. Myers
(1995) 36 Cal.App.4th 1289, 1295-1296; Phillips v. St. Mary Regional Medical Center (2002) 96 Cal.App.4th
218, 223; Himaka v. Buddhist Churches of
America
(N.D.Cal. 1995) 919 F.Supp. 332, 334-335; Scott v. Solano County Health and Social Order Services Department
(E.D.Cal. 2006) 459 F.Supp.2d 959, 970.)
Furthermore, as plaintiffs’ article I, section 8 claim virtually mirrors
their FEHA claims, the FEHA claims are also alternative remedies. That plaintiffs cannot state a cause of
action against a supervisor for termination in violation of public policy (see >Miklosy v. Regents of University of
California (2008) 44 Cal.4th 876, 900 (Miklosy)
[claim “can only be asserted against an
employer
”]) or under FEHA is of no moment.
Plaintiffs have stated such claims against both Cognizant and
Molina. These are their alternative
remedies.

None of the
other factors under the Katzberg
analysis compels us to declare that plaintiffs may pursue a cause of action for
damages under article I, section 8.
Plaintiffs’ reliance on Gay Law
Students Assn. v. Pacific Tel. & Tel. Co.
(1979) 24 Cal.3d 458 is
misplaced, since the Supreme Court in Katzberg
specifically found that the case did not authorize a claim for damages. As plaintiffs have failed to provide the
Court with any basis on which we may find their article I, section 8 claim
valid, this cause of action is properly dismissed.

IV. Unruh Civil Rights Act

The Unruh
Civil Rights Act, found at section 51 of the Civil Code, provides, in pertinent
part: “All persons within the
jurisdiction of this state are free and equal, and no matter what their sex,
race, color, religion, ancestry, national origin, disability, medical
condition, genetic information, marital status, or sexual orientation are
entitled to the full and equal accommodations, advantages, facilities,
privileges, or services in all business establishments of every kind
whatsoever.” (Civ. Code, § 51, subd.
(b).) Plaintiffs’ second amended
complaint alleges that Desai violated this provision by “refus[ing] to speak to
plaintiffs, and each of them, about working for the defendants; asking
plaintiffs if they were interested in working for the defendants [>sic]; refusing to allow the plaintiffs
to make job applications; rejecting the plaintiff’s job applications when made
to defendants and recruiting only individuals of Indian descent.”

This cause
of action fails. It has long been
established that the Unruh Civil Rights Act does not apply in cases of
employment discrimination. (>Alcorn v. Anbro Engineering, Inc. (1970)
2 Cal.3d 493, 500 (Alcorn) [“there is
no indication that the Legislature intended to broaden the scope of section 51
to include discriminations other than those made by a ‘business establishment’
in the course of furnishing goods, services or facilities to its clients, patrons
or customers”]; Rojo v. Kliger (1990)
52 Cal.3d 65, 77 [“the Unruh Civil Rights Act has no application to employment
discrimination”].)

Desai’s
alleged refusal to consider retaining plaintiffs and his recruiting of other
workers were done in the employment context.
The authorities cited by plaintiffs, Sisemore
v. Master Financial Inc.
(2007) 151 Cal.App.4th 1386 and >Payne v. Anaheim Memorial Medical Center,
Inc. (2005) 130 Cal.App.4th 729, are not apposite. The alleged wrongful conduct at issue in >Sisemore was a financial institution’s
refusal to issue a home loan to the plaintiff.
(151 Cal.App.4th at p. 1405-1406.)
In Payne, it was a hospital’s
denial of facility privileges to a nonemployee physician. (130 Cal.App.4th at p. 733.) Neither of these cases involved the hiring
and firing of employees, which is the basis of plaintiffs’ claim, and one that
does not lie under Civil Code section 51.

V. Intentional Infliction of Emotional
Distress


The
elements of a cause of action for intentional infliction of emotional distress
are: (1) extreme and outrageous conduct
by the defendant; (2) done with the intention to cause, or with reckless
disregard of the probability of causing, emotional distress; (3) the plaintiff’s
suffering severe or extreme emotional distress; and (4) actual and proximate
causation of emotional distress. (>Hughes v. Pair (2009) 46 Cal.4th 1035,
1050.)

The
allegations supporting plaintiffs’ intentional infliction of emotional distress
claims are similar to the allegations made in support of the causes of action
discussed above. Desai, relying on >Miklosy, and like authority, argues that
the exclusive remedy provisions of California’s workers’ compensation law
precludes plaintiffs from holding Desai personally liable for emotional distress
arising out of their termination. In >Miklosy, the plaintiffs claimed they
suffered emotional distress as a result of adverse employment decisions. The Supreme Court upheld the defendants’
demurrer, finding: “The alleged wrongful
conduct . . . occurred at the worksite, in the normal course of the
employer-employee relationship, and therefore workers’ compensation is
plaintiffs’ exclusive remedy for any injury that may have resulted.” (44 Cal.44 at p. 902; see also >Shoemaker v. Myers (1990) 52 Cal.3d 1,
25; Livitsanos v. Superior Court
(1992) 2 Cal.4th 744, 754.)

Desai’s
argument that plaintiffs’ claim here is precluded by workers’ compensation law
is incorrect. The conduct alleged in the
action, discrimination on the basis of age and national origin, is not conduct
arising in the normal course of an employer-employee relationship. It is therefore not barred by the exclusive
remedy provisions of workers’ compensation law.
(Accardi v. Superior Court
(1993) 17 Cal.App.4th 341, 352 (Accardi)
[“a claim for emotional and psychological damage, arising out of employment, is
not barred where the distress is engendered by an employer’s illegal
discriminatory practices”]; Watson v.
Department of Rehabilitation
(1989) 212 Cal.App.3d 1271, 1287 [“Prohibited
racial and age discrimination are against the law and policy of this
state. Such discrimination is not a
normal incident of employment, no less for an employee of the state than for
one employed in the private sector.”].)

Just
because the claim is not barred by the workers’ compensation law, however, does
not mean that it may be asserted against an individual such as Desai. Plaintiffs contend that imposition of
personal liability in this case is supported by Alcorn and Accardi. Although both of these cases upheld
intentional infliction of emotional distress claims against various defendants,
including individuals (see Alcorn,> supra, 2 Cal.3d at p. 498-499; >Accardi, supra, 17 Cal.App.4th at pp. 352-353), neither analyzed the issue
of whether such a claim may be asserted against an individual supervisor for
actions, such as hiring and firing decisions, that are fundamental to the
managerial function.

Both >Alcorn and Accardi were decided well before Reno and Jones, as well
as Janken. In Janken,
we found that the plaintiff’s intentional infliction of emotional distress
claim failed for similar reasons as his FEHA claim. We wrote:
“Managing personnel is not outrageous conduct beyond the bounds of human
decency, but rather conduct essential to the welfare and prosperity of
society. A simple pleading of personnel
management activity is insufficient to support a claim of intentional
infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are
improperly motivated, the remedy is a suit against the employer for
discrimination.” (Janken, supra,> 46 Cal.App.4th at p. 80.)

Defendants
criticize this decision, arguing that it diverged from Alcorn and Accardi. As explained above, neither of those cases
specifically analyzed the issue of supervisor liability. Furthermore, Reno, following Janken,
expressed a congruent holding: “It would
be absurd to forbid a plaintiff to sue a supervisor under the FEHA, then allow
essentially the same action under a different rubric. Because plaintiff may not sue [defendant] as
an individual supervisor under the FEHA, she may not sue her individually for
wrongful discharge in violation of public policy.” (Reno,
supra
, 18 Cal.4th 640, 664.) More
recently, Division Seven of this Court found that because a defendant
supervisor could not be personally liable for discrimination-based employment
claims under Reno, “it follows he
cannot be held liable for the emotional distress claims either.” (Smith
v. International Brotherhood of Electrical Workers
(2003) 109 Cal.App.4th
1637, 1658.)

These
authorities apply equally well to this case.
Thus, the demurrer was properly sustained in favor of Desai.

VI. Amendment Is Not Warranted

Plaintiffs
bear the burden of demonstrating a reasonable possibility of curing the defects
in their complaint by amendment. (>Melton v. Boustred (2010) 183
Cal.App.4th 521, 528.) We determine that
they have not done so. Plaintiffs
contend that they can allege further facts buttressing their assertion that
Desai is an employment agency. These
allegations, however, would not cure the fundamental defect with plaintiffs’
claims—that they are premised on decisions Desai made in his supervisory
function. Leave to amend, therefore, is
not warranted.

DISPOSITION

The appeal
from the February 8, 2012, order is treated as a petition for an extraordinary
writ. The petition for an extraordinary
writ is denied. Desai shall recover his
costs on appeal.

NOT TO
BE PUBLISHED IN THE OFFICIAL REPORTS
.



BOREN,
P.J.

We concur:



ASHMANN-GERST, J.



CHAVEZ, J.





id=ftn1>

href="#_ftnref1" name="_ftn1" title="">[1] The
allegations are taken from plaintiffs’ second amended complaint. On review of a demurrer, we treat all
properly pleaded facts as true. (>Moore v. Regents of University of California
(1990) 51 Cal.3d 120, 125.)

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">[2] Under
certain conditions, the United States
may grant a work visa to an alien “who is coming temporarily to the United
States to perform services in . . . a specialty occupation.” (8 U.S.C. § 1101(a)(15)(H)(i)(b).)

id=ftn3>

href="#_ftnref3"
name="_ftn3" title="">[3] Molina
and Cognizant are not parties to this appeal.

id=ftn4>

href="#_ftnref4"
name="_ftn4" title="">[4] This
claim was brought by all plaintiffs except for Beasley, Pineda, and Shen.






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Description Plaintiffs attempt to appeal from an order sustaining a demurrer without leave to amend. Although such an order is not appealable, we exercise our discretion to treat plaintiffs’ appeal as a petition for an extraordinary writ.
We find that plaintiffs’ causes of action against their former supervisor for employment-based discrimination-related claims fail, primarily because, given the facts alleged, there is no individual liability for such claims. Therefore, the demurrer was properly sustained without leave to amend.
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