Filed 6/6/13 Beasley v. Desai CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.,                                             B239941

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. NC055957)
         v.
                                                                     ORDER MODIFYING OPINION
AMIR M. DESAI,                                                       [No Change in Judgment]

         Defendant and Respondent.



THE COURT:
         The opinion filed herein on May 13, 2013, is ordered modified as follows:
Page 14: Substitute the word “Plaintiffs” for the word “Defendants” in the first sentence
of the final paragraph.
         This modification does not effect a change in judgment.
Filed 5/13/13 (unmodified version)
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication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.,                                             B239941

         Plaintiffs and Appellants,                                  (Los Angeles County
                                                                     Super. Ct. No. NC055957)
         v.

AMIR M. DESAI,

         Defendant and Respondent.



         APPEAL from a judgment of the Superior Court of 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 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 40.1
       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).2 Desai executed his plan over the
course of several years, eventually displacing Molina’s former employees (including


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.)
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).)

                                               3
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.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;4 (8) failure to take all reasonable steps to prevent
discrimination in violation of Government Code section 12940, subdivision (k); (9)




3      Molina and Cognizant are not parties to this appeal.
4      This claim was brought by all plaintiffs except for Beasley, Pineda, and Shen.


                                              4
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

                                              5
(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

                                              6
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,

                                               7
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.)



                                              8
       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,

                                              9
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.)

                                              10
       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.



                                             11
       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

                                              12
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,

                                             13
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

                                            14
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.



                                            15
