Filed 1/21/14 Renswick v. Tapanes CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 SEVEN


GERI RENSWICK,                                                      B248055

         Plaintiff and Appellant,                                   (Los Angeles County
                                                                    Super. Ct. No. BC487698)
         v.

RICARDO TAPANES et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara
A. Meiers, Judge. Reversed with directions.
         Haney Law Group, Haney & Young, Steven H. Haney, Sarah J. Peterson and
Ryan C.C. Duckett for Plaintiff and Appellant.
         Marcos F. Hernandez and Alexander Molina for Defendants and Respondents.


                                          ______________________
                                     INTRODUCTION


       Geri Renswick, an elementary school teacher, filed this action against her
employer, the Los Angeles Unified School District, her school, Humphreys Avenue
Elementary School, and her principal, Ricardo Tapanes (collectively, the District) . The
District filed a demurrer to three of the five causes of action in Renswick’s second
amended complaint, and the trial court sustained the demurrer without leave to amend.
The trial court then dismissed the entire action, even though two causes of action
remained, and entered a judgment of dismissal against Renswick. We reverse the
judgment because the trial court’s order sustaining the demurrer to three of the five
causes of action did not resolve the entire action.


                 FACTUAL AND PROCEDURAL BACKGROUND1


       Renswick’s operative second amended complaint alleged that she was employed
by the District as an elementary school teacher for over 22 years and was over the age of
40. She suffered “from a physical disability and/or condition (incontinence),” which
“impacted a major life activity-specifically her ability to pass urine or feces under her
own control.” Despite a surgery in approximately 2008, Renswick “still suffered from
incontinence, and her colon continued to function improperly resulting in sporadic,
and/or the uncontrolled passage of bowel and/or urinary movements,” so that “Renswick
was subject to frequent and irregular bathroom breaks during the school year . . . .” As a
result, Renswick needed reasonable accommodations on school days during bad weather
because on such days teachers had “to maintain recess within their own individual
classrooms” and could not leave the students unsupervised.


1       “On appeal from the sustaining of a demurrer, we accept as true the well-pleaded
facts in the operative complaint, [Renswick’s] second amended complaint.” (Aryeh v.
Canon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1189, fn. 1.)


                                              2
       At some point during Renswick’s tenure at Humphreys Avenue Elementary
School, Tapanes became the principal. Renswick asked Tapanes for an accommodation
that, on “inclement weather days,” would “allow another staff member to supervise her
classroom for a short period of time to allow [her] additional time to use the restroom”
during indoor recess periods. “Tapanes denied this request, and forced Renswick to hold
in her own urine and/or bowels, or run the risk of having her classroom unsupervised and
be subject to unwarranted discipline if she left her classroom to use the restroom.” The
District did not engage in an interactive process “to determine the reasonableness of this
accommodation request.”
       Because of Renswick’s age and disability, Tapanes arranged to have “his assistant
follow [Renswick] around school to subject her to heightened scrutiny when no other
teachers without such characteristics were forced to endure” such scrutiny. Tapanes also
made derogatory remarks about Renswick’s health and age, and spoke to her “about the
differences between retirement and termination . . . as a means to threaten her and force
her to retire,” even though Renswick had not requested such information. Tapanes
embarrassed Renswick by “publicly criticizing” her about her teaching style, “subjected
her to several subsequent disciplinary conferences” “as a form of public embarrassment
and ridicule,” and denied her breaks during her teaching day. Tapanes also made
“knowingly false comments about her performance, experience, and skills.”
       When Renswick complained, Tapanes “retaliated against [her] for speaking her
voice and expressing her opinion about being targeted because of her age.” Tapanes also
retaliated against Renswick for her union representation at a disciplinary hearing of
another female teacher who was also alleging discrimination under the Fair Employment
and Housing Act (FEHA; Gov. Code, § 12900 et seq.). Tapanes tried “to coerce and
discourage [Renswick] from representing other teachers at disciplinary hearings
concerning their own allegations of FEHA violations,” and used discipline to discourage
Renswick “from filing a grievance or having a union representative present at her several
disciplinary hearing[s].” In 2012, after Renswick filed two complaints with the
Department of Fair Employment and Housing (DFEH), Tapanes “engaged in further

                                             3
retaliatory conduct by denying [Renswick] family leave to be with her sister who was
suffering from cancer. Even though there were three substitute teachers on standby,
Tapanes denied Renswick’s request to have a substitute teacher cover for her so she could
be with her ill sister.”
       Renswick’s second amended complaint asserted causes of action for (1) disability
and age discrimination in violation of FEHA (Gov. Code, § 12940, subd. (a)), (2) failure
to provide reasonable accommodation for a physical disability in violation of FEHA (id.,
§ 12940, subd. (m)), (3) failure to engage in the interactive process in violation of FEHA
(id., § 12940, subd. (n)), (4) retaliation in violation of FEHA (id., § 12940, subd. (h)), and
(5) intentional infliction of emotional distress.
       The District demurred to the first, fourth, and fifth causes of action of Renswick’s
second amended complaint. The District argued that the first cause of action was
uncertain because it included both disability discrimination and age discrimination, which
could prevent the District from filing a motion for summary adjudication on the first
cause of action. The District also argued that Renswick did not allege that it had engaged
in any wrongdoing because of her protected status or that she had suffered an adverse
employment action. The District argued that the fourth cause of action was “devoid of
facts” because Renswick did not allege retaliation on the basis of her protected status, and
that “FEHA only prohibits retaliation for engaging in acts protected by FEHA,” and
union representation is not one of those acts. Finally, the District argued that the fifth
cause of action for intentional infliction of emotional distress did not allege extreme or
outrageous behavior and was preempted by Workers’ Compensation. The District did
not demur to, or make any argument regarding, Renswick’s second cause of action for
failure to provide reasonable accommodation or the third cause of action for failure to
engage in the interactive process.
       At the hearing on the District’s demurrer, the trial court stated, “[t]here’s not a
single fact pled here that shows anything, not real facts, not evidentiary facts. And you
don’t have to plead everything with evidentiary facts, but certain types of allegations you
must plead with more particularity.” The trial court stated, “This is a fact-pleading state.

                                               4
We need some facts. . . . There’s just nothing here except conclusory statements that she
has a stomach condition and she’s been discriminated against in various ways. That’s it.”
The trial court ruled: “Defendant’s Demurrer is sustained without leave to amend, the
complaint consisting of nothing but conclusory general statements with no factual basis
whatsoever shown for the conclusions stated. As to defendant Humphreys Avenue
Elementary School, the entire action is stricken and dismissed with prejudice. In light of
the Demurrer ruling, the entire complaint is dismissed with prejudice.”2 Renswick filed a
timely notice of appeal.


                                      DISCUSSION


       A.     Standard of Review
       When reviewing a judgment dismissing an action after an order sustaining a
demurrer without leave to amend, we review the complaint de novo “to determine
whether the complaint alleges facts sufficient to state a cause of action on any legal
theory.” (Akopyan v. Wells Fargo Home Mortgage, Inc. (2013) 215 Cal.App.4th 120,
130-131.) “We independently review the superior court’s ruling on a demurrer and
determine de novo whether the complaint alleges facts sufficient to state a cause of action
or discloses a complete defense.” (Regents of University of California v. Superior Court
(2013) 220 Cal.App.4th 549, 558; Alexander v. Exxon Mobil (2013) 219 Cal.App.4th
1236, 1250.) When a demurrer is sustained without leave to amend, “we decide whether
there is a reasonable possibility that the defect can be cured by amendment: if it can be,
the trial court has abused its discretion and we reverse. [Citation.]” (City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865; accord, Arce v. Childrens Hospital Los



2     The District had filed a motion to strike five portions of the second amended
complaint that identified Humphreys Avenue Elementary School as a defendant on the
ground that under Education Code section 35162 an individual school is not a proper
defendant. Renswick did not oppose the motion.


                                             5
Angeles (2012) 211 Cal.App.4th 1455, 1471.) “The issue of leave to amend is always
open on appeal, even if not raised by the plaintiff. [Citation.]” (City of Stockton v.
Superior Court (2007) 42 Cal.4th 730, 746.)


       B.     The Trial Court Erred by Dismissing the Action Because the District Did
              Not Demur to the Second Cause of Action for Failure To Provide
              Reasonable Accommodation or the Third Cause of Action for Failure To
              Engage in the Interactive Process
       The trial court dismissed the entire action even though after the court had
sustained the District’s demurrer to three causes of action, two causes of action remained.
This was error, undoubtedly inadvertent. (See Mounger v. Gates (1987) 193 Cal.App.3d
1248, 1254 [trial court cannot issue a judgment of dismissal where the court has not
disposed of all causes of action]; cf. Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th
288, 307 [“judgment that disposes of fewer than all the causes of action framed by the
complaint is not final in the fundamental sense as to any parties between whom another
cause of action remains pending”].)
       The District contends that the trial court “heard its own motion to dismiss under
Sections 436 and 438 of the Code of Civil Procedure.”3 The record does not support the
District’s contention. There is nothing in the record indicating that the trial court
dismissed Renswick’s second amended complaint pursuant to either Code of Civil



3      Code of Civil Procedure section 436 provides: “The court may, upon a motion
made pursuant to Section 435, or at any time in its discretion, and upon terms it deems
proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any
pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in
conformity with the laws of this state, a court rule, or an order of the court.” Code of
Civil Procedure section 438, subdivision (b)(2), provides that a court “may upon its own
motion grant a motion for judgment on the pleadings,” and that if, after the court grants
such a motion with leave to amend, and an amended complaint or answer is filed after the
time for doing so has expired, then the court may strike the amended complaint or
answer. (Id., subds. (b)(2), (h)(4)(A) & (B).)


                                              6
Procedure section 436 or section 438. The trial court’s order does not state that it was
striking or dismissing either the second and third causes of action, or the entire second
amended complaint, pursuant to either of these statutes. To the contrary, the trial court’s
minute order states that the court dismissed the complaint “[i]n light of the Demurrer
ruling.”
       Nor does the record show that the trial court gave any notice that it was
considering striking or dismissing the second amended complaint on its own motion
pursuant to Code of Civil Procedure section 436 or section 438 . In fact, the record is to
the contrary. On November 9, 2012 the trial court continued the hearing on the District’s
demurrer to Renswick’s first amended complaint to February 19, 2013 and gave notice
that it also would be conducting a hearing pursuant to Code of Civil Procedure
sections 436 and 438 with respect to Renswick’s first amended complaint on that date.
The trial court stated, however, that “[a]n Amended Complaint can be filed within 30
days. And if not answered, any demurrer, et cetera, can be heard on 2-19-13 at 9:30 a.m.,
but no [Code of Civil Procedure section] 438, 436 hearing will be on for that date.” The
trial court also stated at the November 9, 2012 hearing that Renswick would only have to
file opposition to a motion under section 436 or 438 if she decided not to file an amended
complaint, which she did file on December 10, 2012.
       Citing Tostevin v. Douglas (1958) 160 Cal.App.2d 321, the District argues that
dismissal is appropriate where a plaintiff changes his or her story in multiple complaints
to conform with different theories of recovery. The trial court in Tostevin, however, did
not strike a complaint on its own motion. Rather, it struck the complaint pursuant to a
motion to strike filed by the defendant after the plaintiff had failed to comply with the
court’s directions in a prior order sustaining a demurrer with leave to amend. (Id. at
p. 324.) Moreover, the plaintiff in Tostevin kept making changes to his complaints in “an
obvious attempt . . . to circumvent the operation of the statute of frauds and the statute of
limitations.” (Id. at p. 331.) There is no suggestion that Renswick did any such thing in
this case. Similarly, in Neal v. Bank of America (1949) 93 Cal.App.2d 678, also cited by
the District, the trial court struck an amended complaint that consisted “solely of a mere

                                              7
reiteration” of the original complaint and that made no attempt “to state new facts, or to
state the facts more fully,” not on the court’s own motion pursuant to Code of Civil
Procedure section 128 but by granting the defendant’s motion to strike and to dismiss the
action. (Id. at pp. 681, 682; see Los Angeles County Dept. of Children & Family Services
v. Superior Court (2008) 162 Cal.App.4th 1408, 1420, fn. 11 [Neal “involve[d] a judicial
response to a duly noticed motion”].)
       The District also asserts the trial court “has the power to strike . . . frivolous and
sham pleadings” pursuant to Code of Civil Procedure section 128. Section 128 gives the
court the authority to do many things, such as preserving order, compelling compliance
with judgments, orders, and process, and compelling attendance of persons to testify, but
it does not say anything about striking frivolous or sham pleadings. The District has not
cited to any authority authorizing dismissal of a complaint pursuant to section 128
because the complaint is frivolous or a sham.4 Nor does the District dispute that in this
case there was no notice of any motion to dismiss, or order to show cause regarding
dismissal of, the complaint pursuant to Code of Civil Procedure section 128.




4       In Schimmel v. Levin (2011) 195 Cal.App.4th 81, a case not cited by the District,
the Court of Appeal, citing Code of Civil Procedure section 128, subdivision (a)(5), held
that the trial court did not abuse its discretion in striking the defendant’s petition to
compel arbitration filed by a disqualified lawyer who had confidential information about
the plaintiff, but the court gave the defendant 60 days to re-file the petition. (Id. at
pp. 83, 87-88.) In Leavitt v. County of Madera (2004) 123 Cal.App.4th 1502, the court
assumed, but did not reach the issue of whether, “superior courts have the discretion
under Code of Civil Procedure section 128 to dismiss a CEQA petition in the appropriate
circumstances where the petitioner” fails to prepare and complete the administrative
record of proceedings “in a timely fashion.” (Id. at p. 1524; but see Cunningham v.
Superior Court (1986) 177 Cal.App.3d 336, 356 [Code of Civil Procedure section 128
“empowers the trial court to dismiss when appropriate”].)


                                               8
       C.     The Trial Court Erred by Sustaining the Demurrer to the First Cause of
              Action for Age and Disability Discrimination
       To state a claim for disability or age discrimination under FEHA, the plaintiff
must allege “that (1) he was a member of a protected class, (2) he was qualified for the
position he sought or was performing competently in the position he held, (3) he suffered
an adverse employment action, such as termination, demotion, or denial of an available
job, and (4) some other circumstance suggests discriminatory motive.” (Guz v. Bechtel
National, Inc. (2000) 24 Cal.4th 317, 355; see McCaskey v. California State Automobile
Assn. (2010) 189 Cal.App.4th 947, 979.) Renswick argues that she pleaded all of these
elements. The District contends that she failed to plead sufficient facts on element
(3) adverse employment action and element (4) some other circumstance suggesting
discriminatory motive.
       “[A]n adverse employment action must materially affect the terms, conditions, or
privileges of employment to be actionable . . . .” (Yanowitz v. L’Oreal USA, Inc. (2005)
36 Cal.4th 1028, 1052.) “[T]he determination of what type of adverse treatment properly
should be considered discrimination in the terms, conditions, or privileges of employment
is not, by its nature, susceptible to a mathematically precise test, and the significance of
particular types of adverse actions must be evaluated by taking into account the
legitimate interests of both the employer and the employee. Minor or relatively trivial
adverse actions or conduct by employers or fellow employees that, from an objective
perspective, are reasonably likely to do no more than anger or upset an employee cannot
properly be viewed as materially affecting the terms, conditions, or privileges of
employment and are not actionable, but adverse treatment that is reasonably likely to
impair a reasonable employee’s job performance or prospects for advancement or
promotion falls within the reach of the antidiscrimination provisions of [Government
Code] sections 12940[, subdivision ](a) and 12940[, subdivision ](h).” (Id. at pp. 1054-
1055, fn. omitted.) “[T]he phrase ‘terms, conditions, or privileges’ of employment must
be interpreted liberally and with a reasonable appreciation of the realities of the
workplace in order to afford employees the appropriate and generous protection against

                                              9
employment discrimination that the FEHA was intended to provide.” (Id. at p. 1054, fn.
omitted.)
       At the hearing on the District’s demurrer, the trial court told counsel for Renswick,
“You have nothing pled, sir. I’m sorry. I don’t see it.” We, however, see it.
       Renswick alleged that the District subjected her to “heightened scrutiny” and
classroom inspections that the District did not impose on other teachers, subjected
Renswick to unwarranted discipline that other teachers did not receive, refused to allow
her to go to the restroom when she needed to, did not give her sufficient notice of
disciplinary conferences to allow her to have union representation, and, in retaliation,
denied her request for family leave. These allegations satisfy the element of adverse
employment action. (See Jones v. Department of Corrections & Rehabilitation (2007)
152 Cal.App.4th 1367, 1381 [“a series of alleged discriminatory acts must be considered
collectively rather than individually in determining whether the overall employment
action is adverse [citations] and, in the end, the determination of whether there was an
adverse employment action is made on a case-by-case basis, in light of the objective
evidence”].) In the “particular factual context of employment” as an elementary school
teacher (Horsford v. Board of Trustees of California State University (2005) 132
Cal.App.4th 359, 374), denying Renswick the opportunity to use the restroom with
sufficient frequency to accommodate her disability, requiring her to remain in the
classroom with bladder and bowel discomfort while supervising children, and increasing
the risk of urination and defecation in the classroom, materially affected the terms,
conditions, and privileges of her employment. (See Taylor v. City of Los Angeles Dept.
of Water & Power (2006) 144 Cal.App.4th 1216, 1233 [Yanowitz gives a “broad
interpretation of the materiality test”], disapproved on another ground in Jones v. Lodge
at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1173-1174; Turner v. Hershey
Chocolate USA (3d Cir. 2006) 440 F.3d 604, 611, fn. 4 [adverse employment action
under the Americans with Disabilities Act includes the failure to make reasonable
accommodations to a qualified employee with a physical disability]; Honey v. County of



                                             10
Rockland (S.D.N.Y. 2002) 200 F.Supp.2d 311, 320 [refusal to accommodate a plaintiff’s
disability is an adverse employment action under the Americans with Disabilities Act].)
       The District also argues that Renswick was “unable to establish . . . any
circumstance suggesting a discriminatory motive,” and made “no showing . . . that ‘some
other circumstance suggests discriminatory motive’ . . . , as her claim must be based upon
evidence . . . .” FEHA, however, does not require the plaintiff to “establish” or “show”
anything at the pleading stage. Renswick alleged that the District was aware of her
disability and the problem her incontinence caused on inclement weather days, but denied
her request for an accommodation of temporarily allowing another staff member to cover
her classroom for a brief period of time so she could use the restroom. She alleged that
“Tapanes made derogatory remarks [about] her health,” subjected her to sudden
discipline that other non-disabled teachers did not have to experience, yelled at her,
threatened teachers who “ever talked . . . about the discrimination,” and denied her
request for family leave after she filed DFEH complaints. These allegations suggest “a
proscribed motive” and satisfy the fourth element of a disability discrimination claim.
(See Mamou v. Trendwest Resorts, Inc. (2008) 165 Cal.App.4th 686, 714.)
       The District does not make any argument specifically directed to Renswick’s age
discrimination claim. “In order to make out a prima facie case of age discrimination
under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40;
(2) suffered an adverse employment action; (3) was performing satisfactorily at the time
of the adverse action; and (4) suffered the adverse action under circumstances that give
rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was
replaced by someone significantly younger than the plaintiff.” (Sandell v. Taylor-Listug,
Inc. (2010) 188 Cal.App.4th 297, 321.) Element (4) includes both adverse employment
action and circumstances suggesting a discriminatory motive, and, as discussed above,
Renswick’s allegations satisfied these requirements. In addition, Renswick alleged that
“upon Tapanes’ arrival approximately five to six other tenured teachers over the age of
forty (40) were targeted by Tapanes due to their age, and were either forced into early
retirement, transferred out of [Humphreys Avenue Elementary School], or left the school

                                              11
due to Tapanes’ animosity against them due to their age.” Renswick also alleged that
“Tapanes terminated multiple teachers’ assistants who had over 25 years of experience
and were also over the age of forty.” Renswick further alleged that Tapanes made
derogatory remarks about her age, and spoke with her “about the differences between
retirement and termination” in order to “threaten her and force her to retire.”
       Finally, the District argues that Renswick’s “cause of action for disability and age
discrimination is devoid of facts” and not pleaded with sufficient particularity. To satisfy
the particularity requirement of a statutory claim against a public entity, the plaintiff must
plead “‘every fact material to the existence of its statutory liability . . . .’” (Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795; see Richardson-Tunnell v.
School Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061.)
Renswick’s second amended complaint satisfies the particularity requirement. It
identifies the statutory basis for her discrimination claims, Government Code
section 12940, subdivision (a), and alleges what adverse employment action she suffered
and why it was the result of discriminatory actions by Tapanes. It identifies the
individual who allegedly discriminated against her, describes the statements he made to
and about her, and provides some (although not all) of the dates or time periods when he
made the statements and took actions against her. The District does not identify any
material fact that Renswick did not allege or whose absence makes her claims difficult to
understand, other than to state that her discrimination claims are “devoid of facts.” The
allegations in Renswick’s discrimination cause of action are particular enough.


       D.      The Trial Court Erred by Sustaining the Demurrer to the Fourth Cause
               of Action for Retaliation
       To state a claim for retaliation under FEHA, the plaintiff must allege “(1) he or she
engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse
employment action, and (3) a causal link existed between the protected activity and the
employer’s action.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at p. 1042; see
McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 298.) “Under the FEHA,

                                               12
protected activity includes opposition to ‘any practices forbidden under this part or
because the person has filed a complaint, testified, or assisted in any proceeding under
this part,’ [citation] or ‘participated in any manner in an investigation, proceeding, or
hearing’ in an administrative proceeding.” (Taylor v. City of Los Angeles Dept. of Water
& Power, supra, 144 Cal.App.4th at p. 1229.) Retaliation under Government Code
section 12940, subdivision (h), “encompasses a broad range of protected activity,” and
the “determination as to what constitutes a protected activity is inherently fact driven.”
(Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 652, petn.
for review pending, petn. filed Nov. 22, 2013, S214798.)
       Renswick alleged that the District retaliated against her for, among other things,
filing complaints with the DFEH in January and November 2012, assisting others who
alleged FEHA violations, and requesting the reasonable accommodation of having
someone relieve her for a short period of time so that she could use the restroom. These
allegations state a claim for retaliation under FEHA. (See Sanchez v. Swissport, Inc.
(2013) 213 Cal.App.4th 1331, 1341 [plaintiff stated retaliation claim under Government
Code section 12940, subdivision (h), “which prohibits an employer from retaliating
against an employee for exercising her rights under [Government Code] section 12940
. . . because she sought reasonable accommodations for her disability”]; Taylor v. City of
Los Angeles Dept. of Water & Power, supra, 144 Cal.App.4th at p. 1229 [plaintiff
“sufficiently pleaded that he engaged in a protected activity” by alleging that he assisted
in another employee’s discrimination charge and filing a complaint for retaliation].)
       The District argues that Renswick “does not appear to understand that FEHA only
prohibits retaliation for engaging in acts protected by FEHA,” and that “[b]eing a Union
Representative and being represented by a Union, even if true, are not acts protected by
FEHA.” The District’s argument misunderstands Renswick’s claim. Renswick’s
retaliation claim is not based only on her union activities. It is based on filing and
assisting others in filing FEHA discrimination claims, acts that are protected by FEHA.
Moreover, there is no reason union activities cannot form the basis of FEHA retaliation



                                             13
claims if such activities include or are a part of opposing discrimination prohibited by
FEHA or are as a result of filing, testifying, or assisting a FEHA proceeding.


       E.     The Trial Court Properly Sustained the Demurrer to the Fifth Cause
              of Action for Intentional Infliction of Emotional Distress Without Leave
              To Amend
       “To state a cause of action for intentional infliction of emotional distress, the
plaintiff must allege (1) extreme and outrageous conduct 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. [Citation.] Further, the
conduct alleged ‘must be “‘so extreme and outrageous “as to go beyond all possible
[bounds] of decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community.”’”’” (Mintz v. Blue Cross of California (2009) 172 Cal.App.4th 1594, 1607-
1608.) The District argues that even if Renswick’s allegations satisfy these requirements,
her cause of action for intentional infliction of emotional distress is preempted by the
workers’ compensation law. Renswick has not addressed this issue in her briefs.
       “An employer’s intentional misconduct in connection with actions that are a
normal part of the employment relationship, such as demotions and criticism of work
practices, resulting in emotional injury is considered to be encompassed within the
compensation bargain, even if the misconduct could be characterized as ‘manifestly
unfair, outrageous, harassment, or intended to cause emotional disturbance.’ [Citation.]
Workers’ compensation ordinarily provides the exclusive remedy for such an injury.
[Citations.] Conduct in which an employer steps out of its ‘“proper role”’ as an employer
or conduct of ‘“questionable relationship to the employment,”’ however, . . . is not
encompassed within the compensation bargain and is not subject to the exclusivity rule.
[Citation.]” (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 367.)
       Renswick argues that she “pleaded the necessary elements for a cause of action for
intentional infliction of emotional distress” by alleging that “Tapanes yelled at [her]

                                              14
stating comments about her teaching performance that he knew were untrue,” and made
the statements “specifically to make [Renswick] cry and suffer distress.” Renswick
contends that making such “false accusations to [Renswick] is beyond the bounds of
decency and had nothing to do with his role as principal in helping [her] improve her
teaching skills.”
       Even assuming that Tapanes’ alleged conduct, including his refusal to have
someone briefly supervise Renswick’s class on rainy days so that she could use the
restroom, was sufficiently extreme and outrageous to state a claim for intentional
infliction of emotional distress, her claim still falls within the normal employment
relationship, and therefore is barred by the exclusivity provision of the workers’
compensation law. Because Renswick makes no effort to explain how she can amend her
cause of action to avoid the exclusivity bar, we cannot say that the trial court abused its
decision by denying Renswick leave to amend her cause of action for intentional
infliction of emotional distress.




                                             15
                                       DISPOSITION


       The judgment is reversed. The trial court is directed to vacate its order sustaining
the District’s demurrer and to enter a new order sustaining without leave to amend the
District’s demurrer to the fifth cause of action for intentional infliction of emotional
distress and otherwise overruling the demurrer, and ordering the District to answer the
second amended complaint. Renswick is to recover her costs on appeal.



                                                   SEGAL, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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