Koerber v. Encyclopaedia Britannica CA2/2 ( 2022 )

Filed 7/13/22 Koerber v. Encyclopaedia Britannica CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
KIMBERLY KOERBER, B312047
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 19STCV12846)
v.
ENCYCLOPAEDIA
BRITANNICA, INC., et al.,
Defendants and
Respondents.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Rupert A. Byrdsong, Judge. Affirmed.
Gary Rand & Suzanne E. Rand-Lewis, Suzanne E. Rand-
Lewis and Timothy Rand-Lewis for Plaintiff and Appellant.
Jackson Lewis, Andrea F. Oxman, Eve Tilley-Coulson and
Dylan B. Carp for Defendants and Respondents.
******
Kimberly Koerber (appellant) appeals from a judgment of
dismissal entered after the trial court sustained demurrers to all
nine causes of action appellant alleged against respondents
Encyclopaedia Britannica, Inc. (Britannica), and Michael Ross
(Ross) (collectively respondents) without leave to amend.
Appellant also challenges the trial court’s order denying, in part,
appellant’s motion to strike and/or tax costs.
Finding no error, we affirm the judgment and the order.
BACKGROUND
Appellant’s complaint
On April 12, 2019, appellant filed a complaint against
respondents alleging causes of action for (1) intentional infliction
of emotional distress (IIED), (2) violation of Business and
Professions Code section 17200, (3) negligence, (4) fraud, (5)
wrongful refusal to hire, (6) violation of the California
Constitution, (7) violation of civil rights, (8) violation of Labor
Code section 1101, and (9) violation of Labor Code section 1102.1
Appellant alleged that in 2016, she was employed by a
third party sales consultant. During a private conversation while
off work, appellant “expressed private personal political, feminist
and religious opinions.” Her private conversation was “illegally
recorded by a hidden camera without her knowledge” by
“undercover operatives” of an entity called Project Veritas. After
being recorded, appellant’s private political comments were
edited and produced in a promotion piece to market Project
Veritas’ conservative agenda, which Project Veritas then
1 Appellant named Ross as a defendant on all causes of
action except the fifth.
2
disseminated through social media. The video was edited to
“clearly show that [appellant] was engaging in a private
conversation about private personal political, feminist and
religious beliefs” and “that she was unaware that she was being
recorded.” Project Veritas’ actions “resulted in [appellant’s]
wrongful termination” by her third party employer.
After her termination, appellant learned of an open sales
position with Britannica through a headhunter. Appellant
applied for the position titled “Western Regional Sales
Executive.” Prior to applying, appellant confirmed that
respondents were aware of the facts related to the 2016 Project
Veritas recording, dissemination of the video, as well as the fact
that she was wrongfully terminated because she expressed
private opinions relating to her personal political, feminist and
religious beliefs in a private conversation while off work.
Appellant learned that respondents, and specifically respondent
Ross, were aware of the Project Veritas recording. Ross
represented to appellant that he considered appellant a candidate
for the open position at Britannica and wanted to interview her.
Ross was, at all relevant times, Britannica’s “Senior Vice
President, Digital Learning, Britannica Digital Learning US.”2
In reliance on Ross’s representation, appellant applied and
was interviewed via Skype for the sales executive position.
Unbeknownst to appellant, Ross had chosen to interview her to
take the opportunity to abuse and berate her given her personal
political, feminist and religious beliefs. Appellant believed Ross
had taken a special interest in the Project Veritas production of
2 Appellant alleges that Britannica Digital Learning US is a
division of Encyclopaedia Britannica, Inc.
3
her, viewing it in close proximity to the interview, as he was
conversant about it. During the interview Ross “screamed at and
berated [appellant], telling her that her prior wrongful
termination was justified, that no one should hire her because of
her political views, and that he would not hire her because of her
political, feminist and religious beliefs and views, confirming that
he knew she had expressed them in a private conversation, when
she was not working.”
For a substantial portion of the job interview, Ross chose to
focus on the Project Veritas video, a subject which appellant did
not raise. Ross appeared fixated on the topic while berating
appellant for her political views. Appellant was shocked and
distressed as this was not the conduct of a professional
interviewer. In response, appellant stated “she had ‘first
amendment rights’, stood up for her expression of her political,
feminist and religious beliefs, and pointed out that it was a
private conversation.” (Boldface omitted.) Appellant claims to be
a Democrat who believed she was being interviewed during
nonworking hours by individuals working for then-California
Attorney General Kamala Harris, and she had not made certain
statements attributed to her including those about “Common
Core” content. Appellant informed Ross that her work did not
involve “Common Core,” and that Ross’s statements and
impressions about the videos were incorrect.
Ross, incensed, screamed at appellant and abusively
berated her, using a loud, volatile voice, including that “sales
representatives should keep quiet about politics.” Appellant was
shocked, extremely distressed and tearful.
Appellant alleged that Ross’s motivation for the interview
was to interrogate, abuse and berate appellant about the Project
4
Veritas video and to berate her for her personal political, feminist
and religious beliefs, not to hire her. Appellant further alleged
that Ross denied her employment based upon lawful conduct,
which occurred during nonworking hours, in which she expressed
her personal political, feminist and religious beliefs.
Britannica “refused to hire [appellant] because of her
lawful conduct which occurred during nonworking hours which
did not involve [Britannica] in any manner.”
Appellant did not allege that she had exhausted her
administrative remedies required when bringing an action for
violating the California Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12940 et seq.). Appellant filed an
administrative claim with the California Labor Commissioner’s
Office, which she later withdrew.
Respondents’ demurrers
On August 12, 2019, respondents filed demurrers to
appellant’s complaint. Britannica demurred to all causes of
action alleged against it, arguing that appellant failed to allege
her fraud claim with sufficient specificity; appellant’s claim for
violation of the California Constitution is not a legally cognizable
claim; Britannica did not interfere with appellant’s political
activity; appellant was never subject to coercion regarding her
political activity; appellant’s cause of action for violation of civil
rights failed to state sufficient facts and was improper given
appellant’s allegations of employment discrimination; appellant’s
claim for wrongful refusal to hire is not a legally cognizable
claim; appellant did not state facts sufficient to state a claim for
intentional infliction of emotional distress; appellant did not
allege that Britannica owed her any duty to support her
negligence claims; and appellant failed to state a claim under
5
Business and Professions Code section 17200. Britannica
requested that the trial court take judicial notice of appellant’s
initial claim with the Department of Industrial Relations, and
the department’s closure of the initial claim.
Ross demurred to the causes of action alleged against him
on the same grounds as Britannica.
The trial court sustained without leave to amend
respondents’ demurrers to the first, second, third, fourth, and
sixth causes of action. It sustained with leave to amend
respondents’ demurrers to the fifth, eighth, and ninth causes of
action.
First amended complaint (FAC)
Appellant filed her FAC on November 22, 2019, alleging
causes of action for (1) wrongful refusal to hire, (2) violation of
Labor Code section 1101, and (3) violation of Labor Code section
1102. Appellant’s complaint contained nearly identical factual
allegations as the original complaint.
Respondents’ demurrers to the FAC
On December 27, 2019, respondents filed demurrers to the
FAC. Britannica demurred to all causes of action alleged against
it and argued that appellant’s claim for wrongful refusal to hire is
not a legally cognizable claim and her exclusive remedy was
through a complaint to the Labor Commissioner. Britannica
further argued that appellant’s cause of action for violation of
Labor Code section 1101 failed because appellant failed to allege
that Britannica controlled or directed her political activities, and
her cause of action for violation of Labor Code section 1102 failed
because appellant failed to allege that Britannica coerced or
influenced her. Ross demurred to appellant’s complaint on the
same grounds set forth by Britannica.
6
On June 30, 2020, the trial court heard argument and took
consideration of the matter under submission. On August 4,
2020, it issued an order sustaining the demurrers as to all causes
of action without leave to amend. The court ordered respondents
to move for dismissal pursuant to Code of Civil Procedure section
581.
On September 3, 2020, respondents filed their request for
dismissal.
Proceedings related to respondents’ memorandum of costs
On September 23, 2020, respondents filed their
memorandum of costs, seeking a total of $2,599.64. Respondents
supported their memorandum of costs with a declaration,
including numerous invoices, from counsel Andrea F. Oxman.
Appellant filed a motion to strike and/or tax respondents’
memorandum of costs on October 13, 2020, disputing certain of
respondents’ claimed costs. Following briefing, on January 13,
2021, the trial court issued its minute order granting appellant’s
motion to strike and/or tax costs in part. The court allowed total
costs in the amount of $2,379.04.
Judgment and appeal
Judgment was entered in favor of respondents on
February 16, 2021. On March 18, 2021, appellant filed her
appeal.
DISCUSSION
I. Demurrers
A. Applicable law and standard of review
The function of a demurrer is to test the legal sufficiency of
a complaint. (Fremont Indemnity Co. v. Fremont General Corp.
(2007) 148 Cal.App.4th 97, 113.) A demurrer may be directed
7
only to “defects appearing on the face of the complaint or from
matters of which the court must or may take judicial notice.”
(Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.)
In reviewing an order sustaining a demurrer, “we
independently review the complaint to determine whether the
facts alleged state a cause of action under any possible legal
theory.” (Berger v. California Ins. Guarantee Assn. (2005) 128
Cal.App.4th 989, 998 (Berger).) We give the complaint a
reasonable interpretation, treating the demurrer as admitting all
facts properly pleaded, “but do not ‘assume the truth of
contentions, deductions or conclusions of law.’” (Ibid.)
A judgment of dismissal following a demurrer, sustained
without leave to amend, should be affirmed “if proper on any
grounds stated in the demurrer, whether or not the court acted
on that ground.” (Kramer v. Intuit Inc. (2004) 121 Cal.App.4th
574, 578.)
B. The demurrers were properly sustained
We review each of appellant’s causes of action under the
standard set forth above and separately below and conclude that
the trial court did not err in determining that appellant failed to
state a cause of action against respondents.
1. IIED (first cause of action)
The elements of the tort of IIED are “‘“(1) extreme and
outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme
emotional distress; and (3) actual and proximate causation of the
emotional distress by the defendant’s outrageous conduct. . . .”
Conduct to be outrageous must be so extreme as to exceed all
8
bounds of that usually tolerated in a civilized community.’”
(Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)
Generally personnel management activities do not qualify
as conduct “beyond the bounds of human decency,” for the
purposes of an IIED claim. (Janken v. GM Hughes Electronics
(1996) 46 Cal.App.4th 55, 80 (Janken).) “A simple pleading of
personnel management activity is insufficient to support a claim
of [IIED], even if improper motivation is alleged. If personnel
management decisions are improperly motivated, the remedy is a
suit against the employer for discrimination.” (Ibid.)
Appellant’s complaint alleged that she made respondents
aware of the facts related to the 2016 recording prior to applying
for the position with respondents. She alleged that Ross
represented to her that he considered her a candidate for the
position and wanted to interview her. However, unbeknownst to
appellant, Ross had chosen to interview her solely to take the
opportunity to verbally abuse and berate her due to her personal
political, feminist and religious beliefs. Appellant alleged that
Ross screamed at her and berated her, told her that her prior
wrongful termination was justified, that no one should hire her,
and that he would not hire her because of her political, feminist
and religious beliefs.
Appellant’s IIED cause of action fails because appellant
failed to allege sufficiently outrageous and extreme conduct to
support such a cause of action. First, as Janken dictates,
wrongfully motivated personnel decisions generally cannot be
considered conduct sufficient to support a claim of IIED.
(Janken, supra, 46 Cal.App.4th at p. 80.) Appellant’s allegations
involve respondents’ alleged wrongful motivations in seeking to
interview her, respondent Ross’s act of allegedly screaming and
9
berating her during the job interview, and respondents’ alleged
refusal to hire her based on her alleged lawful conduct during
nonworking hours. In sum, appellant’s allegations involve
allegedly wrongfully motivated personnel decisions, which cannot
form the basis of a claim of IIED. Instead, appellant’s remedy is
“a suit against the employer for discrimination.” (Ibid.)
Further, even considered outside of the context of a
personnel decision, respondents’ alleged actions do not rise to the
level of extreme and outrageous conduct supporting a cause of
action for IIED. The Supreme Court has stated that “[l]iability
for [IIED] ‘“does not extend to mere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities.”’” (Hughes v.
Pair (2009) 46 Cal.4th 1035, 1051 (Hughes).) While respondents’
alleged actions could be considered insults or indignities, such
behavior is insufficiently outrageous to constitute grounds for
IIED. Appellant cites no authority for her position that
screaming at, or berating, an individual in the employment
context supports a claim of IIED.
Appellant also did not allege extreme emotional distress
caused by respondents’ conduct beyond being “shocked, extremely
distressed, and tearful.” “With respect to the requirement that a
plaintiff show severe emotional distress, [the Supreme Court] has
set a high bar. ‘Severe emotional distress means “‘emotional
distress of such substantial quality or enduring quality that no
reasonable [person] in civilized society should be expected to
endure it.’”’” (Hughes, supra, 46 Cal.4th at p. 1051.) Appellant’s
alleged shock, distress, and tears do not rise to the level of
distress of such a substantial or enduring quality that no
reasonable person should be expected to endure it. (Ibid. [holding
10
that “discomfort, worry, anxiety, upset stomach, concern, and
agitation” were insufficient to support a claim of IIED].)
McCough v. University of San Francisco (1989) 214
Cal.App.3d 1577, cited by appellant, supports this outcome. In
McCough, a university professor sued the university after it
denied him tenure. The professor’s allegations that the
university told him he had met the standards for tenure then
denied him tenure, refused to take the professor’s grievances to
arbitration, and told alleged lies about the professor were
insufficient to support a claim for IIED. (Id. at pp. 1587-1588.)
Similarly, appellant’s allegations here were insufficient to
support such a claim. Respondents’ demurrers were properly
sustained as to this cause of action.
2. Business & Professions Code section 17200
(second cause of action)
Business and Professions Code section 17200, also known
as the unfair competition law (UCL), prohibits “any unlawful,
unfair or fraudulent business act or practice.” “An ‘unlawful’
business practice or act within the meaning of the UCL ‘is an act
or practice, committed pursuant to business activity, that is at
the same time forbidden by law.’” (Bernardo v. Planned
Parenthood Federation of America (2004) 115 Cal.App.4th 322,
351.) In order to show a violation of the UCL, a plaintiff must
identify statutory, regulatory, or decisional law that the
defendant has violated. (Bernardo, at p. 352.) “‘[A]n action based
on [the UCL] to redress an unlawful business practice “borrows”
violations of other laws and treats these violations, when
committed pursuant to business activity, as unlawful practices
independently actionable under [Business and Professions Code]
section 17200 et seq. and subject to the distinct remedies
11
provided thereunder.’” (Farmers Ins. Exchange v. Superior Court
(1992) 2 Cal.4th 377, 383.)
Appellant asserts that her complaint alleged that
respondents engaged in conduct that violated the California
Constitution, Labor Code, Civil Code, and FEHA, which were
more than sufficient to state a cause of action under the UCL.
Appellant correctly asserts that we must treat respondents’
demurrers as “admitting the truthfulness of properly pleaded
factual allegations of the complaint.” (Citing Porten v. University
of San Francisco (1976) 64 Cal.App.3d 825, 827.)
Even accepting the truth of all appellant’s properly pled
factual allegations, we find, as set forth in further detail in this
opinion, that appellant has failed to allege a violation of any
underlying law. Because appellant’s complaint and FAC failed to
establish any cause of action, her cause of action for violation of
the UCL must also fail. Thus, respondents’ demurrers to this
cause of action were properly sustained.
3. Negligence (third cause of action)
“‘The elements of a cause of action for negligence are well
established. They are “(a) a legal duty to use due care; (b) a
breach of such legal duty; [and] (c) the breach as the proximate or
legal cause of the resulting injury.”’” (Ladd v. County of San
Mateo (1996) 12 Cal.4th 913, 917.)
Appellant alleged that respondents had a duty to act
towards her with reasonable care. However, an “allegation [that]
states only a legal conclusion, rather than pleading facts . . . is
inadequate.” (Berger, supra, 128 Cal.App.4th at p. 1006.) The
existence of a duty is a legal question, “a court’s conclusion that a
particular plaintiff is entitled to protection.” (Mendoza v. City of
Los Angeles (1998) 66 Cal.App.4th 1333, 1339.) The existence of
12
a duty is based on a balancing of factors, “the foreseeability of
harm to the plaintiff, the degree of certainty that the plaintiff
suffered injury, the closeness of the connection between the
conduct and the injury, the moral blame attached to the
defendant’s conduct, the policy of preventing future harm, the
extent of the burden to the defendant and consequences to the
community of imposing a duty to exercise care with liability for
breach, and the availability and prevalence of insurance.” (Ibid.)
Appellant cites no legal authority for the proposition that a
potential employer undertakes a duty to act with due care in
protecting the subject of a job interview from distress and shock.
Nor does she allege any facts that show that respondents
undertook such a duty in this case. In sum, appellant has failed
to allege facts that show the existence of a legal duty on the part
of respondents towards her during the job interview. In the
absence of such a duty, appellant’s cause of action for negligence
must fail. The demurrers were properly sustained as to this
cause of action.
4. Fraud (fourth cause of action)
The elements of fraud are “(1) misrepresentation, (2)
knowledge of falsity, (3) intent to induce reliance on the
misrepresentation, (4) justifiable reliance on the
misrepresentation, and (5) resulting damages.” (Cansino v. Bank
of America (2014) 224 Cal.App.4th 1462, 1469.) Fraud
allegations must be pleaded with specificity—general and
conclusory allegations are insufficient. (Ibid.) Actionable
misrepresentations must pertain to past or existing material
facts. (Ibid.) “Statements or predictions regarding future events
are deemed to be mere opinions which are not actionable.” (Ibid.)
13
Appellant alleged that Ross represented his intention to
interview appellant because she was a candidate for the open
position and that defendants further represented they were an
equal opportunity employer. However, according to appellant’s
allegations, those representations were false at the time they
were made because Ross’s intent in selecting appellant as a
candidate for an interview was not to hire her, but to interrogate,
abuse and berate her about the video and her personal political,
feminist and religious beliefs. As the trial court pointed out,
appellant also alleged that she applied for the position and was
interviewed by respondents on April 13, 2017, via Skype.
Therefore, there was nothing false about Ross’s representation
that he wanted to interview her. Appellant did not allege that
respondents promised to hire her, nor did she allege that
respondents promised that she would advance to the next stage of
the interview process.
In the absence of a material misrepresentation, appellant’s
fraud claim fails. The trial court properly sustained respondents’
demurrers to this cause of action.
5. Wrongful refusal to hire (fifth cause of action)
In both the original complaint and FAC, appellant asserted
a cause of action for “wrongful refusal to hire in violation of
public policy.” As the trial court noted, California does not
recognize a tort of wrongful refusal to hire. (Tameny v. Atlantic
Richfield Co. (1980) 27 Cal.3d 167, 176-178 (Tameny); Williams v.
Sacramento River Cats Baseball Club, LLC (2019) 40 Cal.App.5th
280, 283, 286-288 (Williams).) In Tameny, the Supreme Court
recognized a tort cause of action for wrongful termination in
violation of public policy. (Tameny, supra, at pp. 176-178.) The
Williams court clarified that there is no cause of action for
14
wrongful refusal to hire, because the tort applies only where the
employer owes a duty to the plaintiff because of an existing
employment relationship. (Williams, supra, at pp. 286-288.) The
Williams court acknowledged that failing to hire a prospective
candidate on the basis of race violates article I, section 8 of the
California Constitution but held that a plaintiff’s sole remedy is
to sue under the FEHA, which provides a statutory cause of
action. (Williams, at p. 288.) As the Williams court stated:
“Because plaintiff was not an employee, defendant did not owe
him a duty; thus, plaintiff’s Tameny claim must fail.” (Ibid.)
Appellant does not address these authorities in her brief to
this court. Instead, appellant insists that she is not required to
exhaust her administrative remedy with the Labor Commissioner
before filing her civil complaint. Appellant cites Labor Code
section 244, which states, in part, “(a) An individual is not
required to exhaust administrative remedies or procedures in
order to bring a civil action under any provision of this code,
unless that section under which the action is brought expressly
requires exhaustion of an administrative remedy.” This provision
is inapplicable to appellant’s tort claim for wrongful refusal to
hire.
Appellant’s citation to Labor Code section 96, subdivision
(k) is inaccurate and irrelevant. Appellant asserts that the
statute contains language supporting a refusal to hire claim. The
statute contains no such language.3
3 Labor Code section 96, subdivision (k), provides that “[t]he
Labor Commissioner and his or her deputies and representatives
authorized by him or her in writing shall, upon the filing of a
claim therefor by an employee, . . . take assignments of:
15
The trial court properly sustained respondent Britannica’s
demurrer to appellant’s fifth cause of action for wrongful refusal
to hire.
6. Constitutional claim (sixth cause of action)
Appellant’s constitutional claim is based on article I,
section I of the California Constitution, which states: “All people
are by nature free and independent and have inalienable rights.
Among these are enjoying and defending life and liberty,
acquiring, possessing, and protecting property, and pursuing and
obtaining safety, happiness, and privacy.” Her claim is also
based on article I, section 8 of the California Constitution, which
states: “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.”
Appellant has failed to cite any law establishing that she is
entitled to bring a claim for violation of the California
Constitution. (Williams, supra, 40 Cal.App.5th at pp. 286-288.)
As set forth above, the Williams court acknowledged that failing
to hire a prospective candidate on the basis race violates article I,
section 8 of the California constitution but held that a plaintiff’s
sole remedy is to sue under the FEHA, which provides a
statutory cause of action. (Williams, supra, at pp. 286-288.)
Appellant cites two cases to support her position that she
has stated a direct cause of action pursuant to the California
Constitution, but neither case supports her position. In Madison
[¶] . . . [¶] (k) Claims for loss of wages as the result of demotion,
suspension, or discharge from employment for lawful conduct
occurring during nonworking hours away from the employer’s
premises.” Contrary to appellant’s representation, it contains no
language concerning refusal to hire.
16
v. Motion Picture Set Painters & Sign Writers Local 729 (C.D.Cal.
2000) 132 F.Supp.2d 1244, the District Court held that the
parties’ grievance “cannot serve as the basis for a cause of action
alleging violation of Article I, § 8.” (Id. at p. 1256.) Thus, the
case does not stand for the proposition that appellant may state
such a cause of action here. In Strother v. Southern California
Permanente Medical Group (9th Cir. 1996) 79 F.3d 859, 871, the
Ninth Circuit held that summary judgment was properly granted
as to the plaintiff’s constitutional claim without addressing
whether such a cause of action is authorized. Thus, the case does
not authorize such a cause of action. (PG&E Corp. v. Public
Utilities Com. (2004) 118 Cal.App.4th 1174, 1200 [“‘“an opinion is
not authority for a proposition not therein considered”’”].)
The trial court properly sustained respondents’ demurrers
to the sixth cause of action.
7. Civil rights (seventh cause of action)
In her seventh cause of action, appellant alleged violations
of Civil Code section 51 (Unruh Civil Rights Act); Civil Code
section 52.1, subdivision (b) (Tom Bane Civil Rights Act) (Bane
Act); and Civil Code section 51.7, subdivision (b)(1) (Ralph Civil
Rights Act of 1976) (Ralph Act). Her allegations do not support a
viable cause of action under any of these statutes.
The Unruh Civil Rights Act provides: “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,
sexual orientation, citizenship, primary language, or immigration
status are entitled to the full and equal accommodations,
advantages, facilities, privileges, or services in all business
establishments of every kind whatsoever.” The Supreme Court
17
has held that the Unruh Civil Rights Act has “no application to
employment discrimination.” (Rojo v. Kliger (1990) 52 Cal.3d 65,
77; see Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493,
500.) Because appellant’s allegations relate exclusively to her
interview for employment with respondents, she has not stated a
cause of action for violation of the Unruh Civil Rights Act.
The Bane Act provides that any “person” may not
“interfere[] by threat, intimidation, or coercion, or attempt[] to
interfere by threat, intimidation, or coercion, with the exercise or
enjoyment by any individual or individuals of rights secured by
the Constitution or laws of the United States, or of the rights
secured by the Constitution or laws of this state.” (Civ. Code,
§ 52.1, subd. (b).) Appellant’s complaint alleges no threats,
intimidation, or coercion interfering with her exercise of her
rights. Appellant’s allegations that she was screamed at and
berated during a job interview are insufficient.
The Ralph Act similarly provides, in part, that “[a]ll
persons within the jurisdiction of this state have the right to be
free from any violence, or intimidation by threat of violence,
committed against their persons or property because of political
affiliation, or on account of any characteristic listed or defined in
subdivision (b) or (e) of section 51, or position in a labor dispute,
or because another person perceives them to have one or more of
those characteristics.” (Civ. Code, § 51.7, subd. (b)(1).) A
required element of a Ralph Act violation is an allegation that the
defendant committed violence or made a threat of violence.
Appellant has failed to allege any acts of violence or threats of
violence, therefore her allegations are insufficient to set forth a
violation of the Ralph Act.
18
The trial court properly sustained respondents’ demurrers
to the seventh cause of action.
8. Labor Code section 1101 (eighth cause of action)
Labor Code section 1101 provides, “[n]o employer shall
make, adopt, or enforce any rule, regulation, or policy: [¶] (a)
Forbidding or preventing employees from engaging or
participating in politics or from being candidates for public
office,” or “(b) Controlling or directing, or tending to control or
direct the political activities or affiliations of employees.” Labor
Code sections 1101 and 1102 serve to protect “‘the fundamental
right of employees in general to engage in political activity
without interference by employers.’” (Gay Law Students Assn. v.
Pacific Tel. & Tel. Co. (1979) 24 Cal.3d 458, 487, superseded by
statute as stated in In re Marriage Cases (2008) 43 Cal.4th 757,
835, fn. 56.)
Appellant alleges that respondents berated her and refused
to hire her due to a private, personal opinion publicized in a video
due to a concealed policy and rule not to hire those such as
appellant who participate in political activity. Appellant does not
allege that she was at any time an employee of respondents, or
that respondents forbade her from engaging in political activities
or controlled or directed her political activities. In fact, appellant
alleged that during the interview, she stood up for her actions
and insisted that she had a right to express her personal political,
feminist and religious beliefs. Because appellant was not an
employee of respondents, and because respondents did not coerce
or attempt to control her, appellant has failed to state a cause of
action for violation of Labor Code section 1101. The trial court
properly sustained respondents’ demurrer to this cause of action.
19
9. Labor Code section 1102 (ninth cause of action)
Labor Code section 1102 states: “No employer shall coerce
or influence or attempt to coerce or influence his employees
through or by means of threat of discharge or loss of employment
to adopt or follow or refrain from adopting or following any
particular course or line of political action or political activity.”
As set forth above, the statute was designed to protect “‘the
fundamental right of employees in general to engage in political
activity without interference by employers.’” (Gay Law Students
Assn. v. Pacific Tel. & Tel. Co., supra, 24 Cal.3d at p. 487.)
As set forth above, according to the allegations of the
complaint and FAC, appellant was never an employee of
respondents. Therefore, this statute does not apply to her. Also
appellant failed to allege that she was coerced, influenced or
threatened with discharge or loss of employment. Appellant cites
no authority suggesting that the statute has been extended to
apply to prospective employees. In short, appellant has not
alleged a violation of Labor Code section 1102, and the trial court
properly sustained respondents’ demurrer to this cause of action.
C. Leave to amend
After affording appellant one opportunity to amend three
causes of action, the trial court ultimately sustained respondents’
demurrers to all of appellant’s causes of action without leave to
amend. On appeal, the burden falls on appellant to show that
there is a reasonable possibility that the appellant could cure the
defects in the complaint by amendment. (San Diego Unified
School Dist. v. Yee (2018) 30 Cal.App.5th 723, 742.) To meet this
burden, an appellant “must affirmatively demonstrate how the
complaint can be amended and how the amendment will cure the
deficiencies.” (Ibid.)
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Appellant has not attempted to show how she can cure any
of the defects in the complaint or FAC by amendment. Thus, the
trial court did not abuse its discretion in declining to grant
appellant leave to amend.
II. Cost award
A. Applicable law and standard of review
Code of Civil Procedure section 1032, subdivision (b),
provides that except as otherwise provided by statute, “a
prevailing party is entitled as a matter of right to recover costs in
any action or proceeding.” Such costs generally “shall be as
determined by the court in its discretion.” (Code Civ. Proc.,
§ 1033, subd. (a).) Allowable costs include filing and motion fees
(Code Civ. Proc., § 1033.5, subd. (a)(1)), service of process fees (id,
subd. (a)(4)), and court reporter fees (id., subd. (a)(11)). Fees that
are not expressly authorized by statute may be allowed in the
discretion of the court. (Id., subd. (c)(4) [“Items not mentioned in
this section and items assessed upon application may be allowed
or denied in the court’s discretion.”]; see Nelson v. Anderson
(1999) 72 Cal.App.4th 111, 132.) In evaluating discretionary
costs, the test is whether such items were “reasonably necessary
to the conduct of the litigation rather than merely convenient or
beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd.
(c)(2); see Applegate v. St. Francis Lutheran Church (1994) 23
Cal.App.4th 361, 364.)
“If the items appearing in a cost bill appear to be proper
charges, the burden is on the party seeking to tax costs to show
that they were not reasonable or necessary. On the other hand, if
the items are properly objected to, they are put in issue and the
burden of proof is on the party claiming them as costs. Whether
a cost item was reasonably necessary to the litigation presents a
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question of fact for the trial court and its decision is reviewed for
abuse of discretion.” (Ladas v. California State Auto. Assn.
(1993) 19 Cal.App.4th 761, 774.)
B. Filing and motion fees
Appellant moved to tax $449.38 from respondents’ costs
related to the electronic filing of documents with the court on the
grounds that such charges were, in fact, unrecoverable attorney
service charges. Appellant objected that the invoices submitted
by respondents included charges for “base” fees that varied, with
no explanation for the variance, and that respondents claimed
fees for delivering and copying “chambers copies” of respondents’
filings. Appellant argues that photocopying charges are
expressly disallowed by Code of Civil Procedure section 1033.5,
subdivision (b)(3).
Filing fees are expressly recoverable under Code of Civil
Procedure section 1033.5, subdivision (a)(1). Respondents’ cost
declaration shows that respondents used Ace Attorney Service,
Inc., an approved electronic service provider, to file their
demurrers to both the initial complaint and the FAC, as required
by local rules and the trial court’s standing order, and to have
courtesy copies of their filings delivered to the court, also
required by the local rules and the trial court’s standing order.
Respondents attached to their supporting declaration both a copy
of the trial judge’s standing order and the Los Angeles Superior
Court’s standing orders. The orders showed the requirements
regarding electronic filing and providing courtesy copies to the
court. Respondents showed that the dates of the challenged
charges corresponded with the dates that respondents filed their
demurrers and reply briefs, as well as a joint memorandum filed
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in conjunction with an informal discovery conference that the
parties were required to attend.
The trial court did not abuse its discretion in determining
that these costs were reasonably necessary to conduct the
litigation. The court did not err in denying appellant’s motion to
tax these costs.
C. Service of process
Appellant argues that the trial court improperly permitted
respondents to recover $16.41 in relation to service of process for
the cost of shipping their reply briefs to appellant’s counsel via
UPS overnight mail. Appellant acknowledges that Code of Civil
Procedure section 1033.5, subdivision (a)(4) allows for recovery of
fees incurred for the service of process, but argues that shipping
by overnight mail is not expressly permitted. Instead, appellant
argues, Code of Civil Procedure section 1033.5, subdivision (a)(4)
limits allowable service of process costs to the specific types of
service mentioned therein. Appellant points out that Code of
Civil Procedure section 1033.5, subdivision (b)(3) disallows
postage charges.
We find that the trial court did not abuse its discretion in
permitting $16.41 in costs incurred by respondents for service of
process. Overnight “courier or messenger fees are not specifically
enumerated as allowable costs in Code of Civil Procedure section
1033.5, subdivision (a), neither are they prohibited in section
1033.5, subdivision (b).” (Foothill-De Anza Community College
Dist. v. Emerich (2007) 158 Cal.App.4th 11, 30.) Thus, such fees
“may be recoverable in the trial court’s discretion if ‘reasonably
necessary to the conduct of the litigation.’” (Ibid.) Respondents
point out that they did not use overnight delivery for mere
convenience, but because Code of Civil Procedure section 1005,
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subdivision (c) requires either a messenger service or overnight
delivery of reply briefs “to ensure delivery to the other party or
parties not later than the close of the next business day after the
time the opposing papers or reply papers . . . are filed.”
The trial court did not err in denying appellant’s motion to
tax $16.41 in overnight courier fees related to service of process.
D. Court reporter costs
Appellant argues that the trial court should have
disallowed $425 in court reporter “attendance fees” for the
October 9, 2019 and June 30, 2020 hearings. Appellant argues
that Government Code section 68086, subdivision (a)(1) sets a
“fee of thirty dollars ($30) . . . for the reasonable cost of the court
reporting services provided at the expense of the court by an
official court reporter pursuant to Section 269 of the Code of Civil
Procedure” for “each proceeding anticipated to last one hour or
less.” Appellant claims that a charge 14 times higher than this
amount is patently unreasonable. Further, appellant argues,
while having a court reporter at the hearings may have been
convenient to respondents’ counsel, appellant argues, they were
unnecessary to the conduct of the litigation.
Costs incurred for court reporter services are authorized by
Code of Civil Procedure section 1033.5, subdivision (a)(11). (See
Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 58-59
[allowing recovery to prevailing party of $2,250 in court reporter
fees]; Benach v. County of Los Angeles (2007) 149 Cal.App.4th
836, 858 [allowing recovery to prevailing party of over $3,930 in
court reporter fees].) Appellant acknowledges that Government
Code section 68086, cited in support of her argument, applies to
court reporting services provided at the expense of the court.
Appellant fails to cite a cap on reasonable fees for private court
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reporting services. Nor does she cite any authority for her
position that $425 is patently unreasonable. We presume the
trial court has experience in approving court reporter fees in its
courtroom.
Further, respondents point out that the court reporting was
necessary to the litigation. In their demurrers to the FAC,
respondents relied heavily on the court’s position at the hearing
on the initial demurrers. Respondents point out that without the
transcripts, they could not have adequately reviewed the trial
court’s position following the first round of demurrers.
The trial court acted within its discretion in allowing
respondents to recover the costs of the court reporter attendance
fees. No error occurred.
DISPOSITION
The judgment and order are affirmed. Respondents are
awarded their costs of appeal.
________________________
CHAVEZ, J.
We concur:
________________________
LUI, P. J.
________________________
ASHMANN-GERST, J.
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