Filed 1/14/14 Kaabinejadian v. Rabobank CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


MASSOUD KAABINEJADIAN,

         Plaintiff and Appellant,                                        E056481

v.                                                                       (Super.Ct.No. CIVRS1110343)

RABOBANK, N.A. et al.,                                                   OPINION

         Defendants and Respondents.


         APPEAL from the Superior Court of San Bernardino County. Joseph R. Brisco,

Judge. Affirmed in part, reversed in part, and remanded with directions.

         Massoud Kaabinejadian, in pro. per.; and Jeanne M. Collachia for Plaintiff and

Appellant. [Retained.]

         Orrick, Herrington & Sutcliffe, Patricia K. Gillette, Kristen M. Jacoby, Lena P.

Ryan, and Craig Wickersham for Defendants and Respondents.

         Plaintiff Massoud Kaabinejadian worked for defendant Rabobank, N.A.

(Rabobank) until he was terminated by his supervisor, defendant Cheryl Walker. He

filed a workers’ compensation proceeding against Rabobank, seeking compensation for

emotional distress, but it was ultimately unsuccessful.


                                                             1
       In this action, Kaabinejadian asserts causes of action for national origin

discrimination, wrongful termination in violation of public policy, breach of contract, and

intentional infliction of emotional distress. The trial court sustained a demurrer to the

first three causes of action, based on the statute of limitations; it rejected Kaabinejadian’s

argument that the statute was equitably tolled during the workers’ compensation

proceeding. The trial court also sustained a demurrer to the fourth cause of action,

apparently ruling that the workers’ compensation proceeding was res judicata as to his

emotional distress claim.

       Kaabinejadian appeals. With respect to the first three causes of action, we will

reverse; we will hold that Kaabinejadian adequately alleged equitable tolling. With

respect to the fourth cause of action, however, we will affirm — not based on res judicata

(or collateral estoppel), but rather because Kaabinejadian failed to allege any sufficiently

extreme or outrageous conduct by defendants.




                                              2
                                               I

                     FACTUAL AND PROCEDURAL BACKGROUND

          A.    The Allegations of the Operative Complaint.

          Kaabinejadian filed this action on December 1, 2011.

          The operative complaint was filed on March 1, 2012. It asserted four causes of

action:

          1. Employment discrimination based on national origin, against Rabobank;

          2. Wrongful termination in violation of public policy, against Rabobank;

          3. Breach of contract, against Rabobank;

          4. Intentional infliction of emotional distress, against both Rabobank and Walker.

          These causes of action were based on the following allegations.

          In December 2005, Rabobank hired Kaabinejadian as a Senior Vice-President –

Credit Administrator.

          In April 2006, several Rabobank employees started making false accusations

about Kaabinejadian to Walker and others; these employees were motivated by national

origin discrimination, and they were hoping to get him fired.

          In May 2006, Kaabinejadian learned about these false accusations. He told

Walker that they were untrue, that they were causing him “significant worry, anxiety and

emotional upset,” and that they were creating a “hostile work environment.” Walker

promised to investigate and to stop these “acts of harassment.”




                                               3
       In June 2006, however, Walker told Kaabinejadian she was not going to

investigate or take any action. Kaabinejadian was “shocked and greatly upset and

disturbed . . . .” He told Walker that he was going to file claims for discrimination and

emotional distress. Walker replied, “in a threatening and menacing voice and demeanor,”

that he should “‘hold up the mirror and look at [him]self,’” which he reasonably

understood to be an expression of prejudice based on his national origin.

       In July 2006, Walker had Kaabinejadian make a six-hour, 350-mile trip from

Ontario to El Centro, telling him falsely that he had to interview applicants for

employment there. Once he got there, Walker admitted that she had lied and fired him.

The termination was in retaliation for his announced intent to file discrimination and

emotional distress claims. The termination made Kaabinejadian “severely emotionally

upset and distressed . . . .”

       In September 2006, Kaabinejadian filed an emotional distress claim with the

Workers’ Compensation Appeals Board (Board). He later added a claim for

discrimination based on intent to file a workers’ compensation claim. (See Lab. Code,

§ 132a.)

       In March 2007, Kaabinejadian filed a national origin discrimination claim against

Rabobank with the California Department of Fair Employment and Housing

(Department). In May 2008, the Department issued him a right-to-sue letter.




                                             4
       In August 2011, an administrative law judge (ALJ) denied Kaabinejadian’s

workers’ compensation claim. She found that it was barred by Labor Code section

3208.3, subdivision (d). This subdivision provides (as relevant here): “[N]o

compensation shall be paid . . . for a psychiatric injury related to a claim against an

employer unless the employee has been employed by that employer for at least six

months. . . . This subdivision shall not apply if the psychiatric injury is caused by a

sudden and extraordinary employment condition.” Kaabinejadian conceded that he

worked for Rabobank for less than six months, and the ALJ found that the claimed injury

was not caused by a sudden and extraordinary employment condition: “[E]ach event

described by Mr. Kaabinejadian as having contributed to his claim of injury . . . fit well

within the parameters of normal, regular or routine exchanges between employees and

the employer . . . .”

       Finally, the ALJ found that Kaabinejadian “ha[d] not sustained his burden of

proof” on his claim of discrimination based on intent to file a workers’ compensation

claim because he did not report any claim of injury until after he had already been

terminated.

       The denial of Kaabinejadian’s workers’ compensation claim became final in

December 2011.




                                              5
       B.     The Demurrer.

       In April 2012, defendants filed a demurrer to the operative complaint.1

Kaabinejadian filed an opposition.

       Later in April 2012, the trial court heard argument on the demurrer. It sustained

the demurrer on all causes of action without leave to amend. With regard to the first,

second, and third causes of action, it explained that the equitable tolling doctrine did not

apply because the Board did not have jurisdiction of Kaabinejadian’s claims. With

regard to the fourth cause of action, it explained that the claim had been “litigated to its

finality” before the Board. Accordingly, it entered judgment against Kaabinejadian and

in favor of Rabobank.




       1      The demurrer itself, Kaabinejadian’s opposition, and defendants’ reply, if
any, have not been included in the appellate record.

        Initially, we considered dismissing Kaabinejadian’s appeal on the ground that he
had failed to supply an adequate record. (See Webman v. Little Co. of Mary Hospital
(1995) 39 Cal.App.4th 592, 595.) However, we are required to “presume that the record
in an appeal includes all matters material to deciding the issues raised.” (Cal. Rules of
Court, rule 8.163.) Defendants have not asked to augment the record and have not argued
that the omitted materials are “necessary for proper consideration of the issues . . . .”
(See Cal. Rules of Court, rule 8.124(b)(1)(B).) We can consider grounds for a general
demurrer even if they were not raised below. (Buford v. State of California (1980) 104
Cal.App.3d 811, 826.) Accordingly, the presumption that the record is adequate stands
unrebutted.



                                              6
                                              II

                                STANDARD OF REVIEW

       A demurrer should be sustained when “[t]he pleading does not state facts

sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).)

       “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. [Citations.] We assume the truth of the properly pleaded

factual allegations, facts that reasonably can be inferred from those expressly pleaded and

matters of which judicial notice has been taken. [Citations.] We liberally construe the

pleading with a view to substantial justice between the parties. [Citations.]” (Regents of

University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.)

                                             III

  FIRST, SECOND, AND THIRD CAUSES OF ACTION: EQUITABLE TOLLING

       With respect to the first three causes of action, Kaabinejadian contends that he

adequately pleaded equitable tolling of the statute of limitations.

       The limitations periods for these causes of action were:

       1. Employment discrimination: One year after issuance of a right-to-sue notice.

(Gov. Code, § 12965, subd. (b).)

       2. Wrongful termination: Two years. (Code Civ. Proc., § 335.1; see Lamke v.

Sunstate Equipment Co. (N.D. Cal. 2004) 387 F.Supp.2d 1044, 1051-1052.)

       3. Breach of written contract: Four years. (Code Civ. Proc., § 337, subd. 1.)



                                              7
       The first cause of action accrued when the Department issued a right-to-sue notice,

in May 2008. Thus, absent equitable tolling, the one-year period had run when this

action was filed in December 2011.

       The second and third causes of action accrued when Kaabinejadian was

terminated, in July 2006. Thus, again, absent equitable tolling, the two-year and four-

year limitations periods had both run by the time this action was filed in December 2011.

       “The equitable tolling of statutes of limitations is a judicially created, nonstatutory

doctrine. [Citations.] It is ‘designed to prevent unjust and technical forfeitures of the

right to a trial on the merits when the purpose of the statute of limitations — timely

notice to the defendant of the plaintiff’s claims — has been satisfied.’ [Citation.] Where

applicable, the doctrine will ‘suspend or extend a statute of limitations as necessary to

ensure fundamental practicality and fairness.’ [Citation.]” (McDonald v. Antelope Valley

Community College Dist. (2008) 45 Cal.4th 88, 99.)

       “Broadly speaking, the doctrine applies ‘“[w]hen an injured person has several

legal remedies and, reasonably and in good faith, pursues one.”’ [Citation.] Thus, it may

apply where one action stands to lessen the harm that is the subject of a potential second

action; where administrative remedies must be exhausted before a second action can

proceed; or where a first action, embarked upon in good faith, is found to be defective for

some reason. [Citation.]” (McDonald v. Antelope Valley Community College Dist.,

supra, 45 Cal.4th at p. 100, italics added.)




                                               8
       “[E]quitable tolling . . . require[s] a showing of three elements: ‘timely notice, and

lack of prejudice, to the defendant, and reasonable and good faith conduct on the part of

the plaintiff.’ [Citations.]” (McDonald v. Antelope Valley Community College Dist.,

supra, 45 Cal.4th at p. 102, fn. omitted.)

       “‘“The timely notice requirement essentially means that the first claim must have

been filed within the statutory period. Furthermore[,] the filing of the first claim must

alert the defendant in the second claim of the need to begin investigating the facts which

form the basis for the second claim. Generally this means that the defendant in the first

claim is the same one being sued in the second.” [Citation.] “The second prerequisite

essentially translates to a requirement that the facts of the two claims be identical or at

least so similar that the defendant’s investigation of the first claim will put him in a

position to fairly defend the second.” [Citation.] “The third prerequisite of good faith

and reasonable conduct on the part of the plaintiff is less clearly defined in the cases. But

in Addison v. State of California [(1978)] 21 Cal.3d 313, . . . the Supreme Court did stress

that the plaintiff filed his second claim a short time after tolling ended.” [Citation.]’

[Citation.]” (McDonald v. Antelope Valley Community College Dist., supra, 45 Cal.4th

at p. 102, fn. 2.)

       “[T]he effect of equitable tolling is that the limitations period stops running during

the tolling event, and begins to run again only when the tolling event has concluded. As

a consequence, the tolled interval, no matter when it took place, is tacked onto the end of

the limitations period, thus extending the deadline for suit by the entire length of time



                                              9
during which the tolling event previously occurred.” (Lantzy v. Centex Homes (2003) 31

Cal.4th 363, 370-371, fn. omitted, italics omitted.)

       Elkins v. Derby (1974) 12 Cal.3d 410 is closely analogous to this case. There, the

plaintiff was injured at the defendant’s business. The plaintiff claimed, in good faith, that

he was the defendant’s employee. Hence, he filed a workers’ compensation claim. The

Board, however, found that he was not an employee and denied his claim. The plaintiff

then filed a personal injury action after the applicable limitations period had run. (Id. at

p. 413.)

       The Supreme Court held that equitable tolling applied. (Elkins v. Derby, supra, 12

Cal.3d at pp. 414-420.) It acknowledged “that plaintiff Elkins was not required to seek

workmen’s compensation as a prerequisite to his filing a civil action but rather could

immediately have initiated a tort action or have pursued his compensation and tort

remedies simultaneously. [Citations.]” (Id. at p. 414.) It explained, however, that

“duplicative proceedings are surely inefficient, awkward and laborious. If, in order to

avert loss of his rights, an injured party is forced to initiate proceedings with both the

compensation board and a superior court, he brings onerous procedural burdens upon

himself, his employer, and the already overtaxed judicial system. Such additional

resource investments go for nought whenever the compensation board concludes that the

injured party is entitled to relief.” (Id. at p. 420.)




                                                10
       The court also stated: “Nor can we overlook the inequity that a duplicative filing

requirement might work upon an injured party. The workmen’s compensation system,

after all, was intended to afford a simple and nontechnical path to relief. [Citations.] The

system affords means by which an employee may learn about his rights informally and

without an attorney. [Citation.] Unaware, under such circumstances, that he may be

entitled to a remedy only in superior court or overwhelmed by seemingly inscrutable

distinctions between ‘employees’ and ‘independent contractors’ or injuries arising within

and without ‘the course of employment,’ an injured party can easily lose his tort remedy

while devoting his attention to pursuing a compensation claim. [Citation.] The tolling of

the statute during the pendency of the compensation claim does much to eliminate this

trap . . . .” (Id. at p. 419, fn. omitted.)

       More generally, it has been said that “the question of tolling is not to be

determined retrospectively depending upon the success or failure of the plaintiff in

pursuing the alternative remedy. [Citation.] . . . The injured person should not be

required ‘to predict at his peril the precise legal theory (remedy) supporting ultimate

recovery. He should not be placed in the dilemma of awaiting “jurisdictional” decisions

. . . (of one tribunal) . . . while the clock of limitations ticks in his ear.’ [Citation.]”

(Myers v. County of Orange (1970) 6 Cal.App.3d 626, 636.)

       Here, the trial court ruled that equitable tolling did not apply because the Board

did not have jurisdiction of Kaabinejadian’s civil claims. In this appeal, defendants seem

to be raising the same argument; for some reason, they do not phrase it in terms of



                                                11
“jurisdiction,” but they do argue that “the legal doctrine of equitable tolling only applies

if a plaintiff chooses from two available remedies. In this case, there was only one forum

for each claim asserted in the [operative complaint] so [Kaabinejadian] could not possibly

choose one remedy over another.” In Elkins itself, however, the Board did not have

jurisdiction of the plaintiff’s claims — other than “jurisdiction to determine jurisdiction”

(Scott v. Industrial Acc. Com. (1956) 46 Cal.2d 76, 83) — because it found that he was

not the defendant’s employee. Nevertheless, equitable tolling applied.

       Defendants, however, also raise a somewhat different argument. They assert that,

under Elkins, for equitable tolling to apply, Kaabinejadian’s civil claims must be the

mirror image of his workers’ compensation claim, with the sole difference being whether

a court or the Board has jurisdiction. Because his civil claims arise out of “different

wrongs” than his workers’ compensation claim, defendants assert, he is not entitled to

equitable tolling.2 (Underlining omitted.)

       The argument that the first claim must be identical to the second claim — or, at

least, identical aside from the jurisdictional facts — was rejected in Collier v. City of

Pasadena (1983) 142 Cal.App.3d 917. The Collier court said: “[T]he two ‘causes of

action’ need not be absolutely identical. The critical question is whether notice of the

first claim affords the defendant an opportunity to identify the sources of evidence which



       2      Defendants do not challenge the applicability of equitable tolling to the
fourth cause of action, for intentional infliction of emotional distress, because damages
for emotional distress are recoverable in a workers’ compensation proceeding.



                                             12
might be needed to defend against the second claim. [The defendant]’s counsel at oral

argument urged the two claims also must represent mutually inconsistent remedies for the

same harm as did the workers’ compensation and tort actions in Elkins. . . . ‘ . . . No such

limitation appears in the language of the precedent cases. . . .’ . . . So long as the two

claims are based on essentially the same set of facts timely investigation of the first claim

should put the defendant in position to appropriately defend the second. . . . In terms of

the underlying policies of the statutes of limitation, it is irrelevant whether those two

claims are alternative or parallel, consistent or inconsistent, compatible or incompatible.”

(Collier, supra, at pp. 925-926, fns. omitted.)

       In support of their “different wrongs” argument, defendants cite Aerojet General

Corp. v. Superior Court (1986) 177 Cal.App.3d 950. There, an injured worker alleged

that his employer had fraudulently concealed the hazards of a chemical that he was

exposed to in the workplace. (Id. at p. 952.) He had previously filed a successful

workers’ compensation claim for his injuries. (Id. at p. 953 & fn. 1.) After a full trial on

the statute of limitations issue, the trial court ruled that equitable tolling applied. (Id. at

pp. 952-953.)

       The appellate court reversed, holding that the workers’ compensation claim did

not equitably toll the fraudulent concealment claim. It explained: “[P]laintiff[’s]

worker’s compensation claim and [his] suit for fraudulent concealment are not alternative

remedies for the same harm; they are different remedies for different harms. The filing of

the former did not alert defendants to the nature or the imminence of the latter. That this



                                               13
is so cannot be gainsaid when it is recognized that evidence an employer might gather

during the pendency of a worker’s compensation action to refute a civil claim for the

same injury will serve him not at all in a suit for fraudulent concealment, where liability

for the injury itself is not at issue.” (Aerojet General Corp. v. Superior Court, supra, 177

Cal.App.3d at p. 956, fn. omitted.)

       As the discussion in Aerojet reveals, that case did not impose a requirement of

“similar harms” or “similar remedies” separate and apart from the preexisting three-part

requirement of timely notice, lack of prejudice, and reasonable and good faith conduct.

Quite the contrary, it discussed the similarities and differences between the two

successive claims in the context of the second requirement, lack of prejudice, which turns

on whether the filing of the first claim put the defendant on notice of the need to defend

against the second claim. Because — on the particular facts of Aerojet — the two claims

involved different wrongs, the first claim failed to afford the requisite notice of the

second claim.

       Cervantes v. City of San Diego (9th Cir. 1993) 5 F.3d 1273 adopted precisely this

reading of California law. There, the plaintiff had been terminated from his job with a

city. He filed an administrative proceeding for reinstatement. When that was

unsuccessful, he filed an action in federal court under 42 United States Code section

1983, alleging that the city had conspired with others to frame him for certain crimes,

which resulted in his termination. (Id. at p. 1274.) The trial court ruled that equitable




                                              14
tolling did not apply, as a matter of law, because the plaintiff’s administrative proceeding

was not “substantially similar” to his civil action. (Id. at p. 1275.)

       The appellate court rejected this “substantial similarity’ test: “‘[S]imilarity’ of the

prior and current claims is a matter best determined following, and on the basis of, the

application of the three-part equitable tolling test established by California law.

Although we have previously stated that ‘equitable tolling is not applicable when a

plaintiff has pursued a remedy as to only one of several distinct wrongs,’ [citation], we

have never suggested that in reaching that determination the district court may bypass the

traditional method for determining California equitable tolling issues. It is the

application of California’s equitable tolling test itself that yields the ‘final’ conclusion as

to whether two claims are ‘similar’ enough that the pendency of the one should toll the

limitations period for the other. Although ‘similarity’ often serves as a shorthand

designation of the outcome of the test, it is neither separable from nor a ‘threshold’ to the

requisite three-part inquiry. Application of the three-part test is mandatory.

       “ . . . ‘[S]imilarity’ of the prior and subsequent claims is a significant

consideration when applying the second test factor, prejudice to the defendant. However,

unlike a ‘threshold’ inquiry determinable as a matter of law, the focus of this factor is

whether the facts of the two claims are ‘at least so similar that the defendant’s

investigation of the first claim will put him in a position to fairly defend the second.’

[Citation.] ‘The critical question is whether notice of the first claim affords the defendant

an opportunity to identify the sources of evidence which might be needed to defend



                                              15
against the second claim.’ [Citation.] This inquiry — the appropriate ‘similarity’ inquiry

under California law — is far more fact-specific and evidence-bound than the ‘threshold’

determination apparently envisioned by the district court. Under California’s equitable

tolling test, ‘similarity’ is less a legal conclusion and more a factual exploration of the

contentions and evidence relevant to each claim. As such, ‘similarity’ is not easily

resolved as a matter of law, without receiving evidence.” (Cervantes v. City of San

Diego, supra, 5 F.3d at pp. 1275-1276, fns. omitted.)

       Here, for purposes of the prejudice prong of the three-part test, Kaabinejadian

alleged: “Defendant Rabobank[,] through its Workers’ Compensation Proceedings legal

counsel of record, . . . conducted a full and thorough investigation of Plaintiff and the

underlying facts surrounding his employment with Defendant Rabobank beginning in

2006 and extending into 2010, including procurement of Plaintiff’s employment, medical

and psychological records, various workplace documents and . . . workplace witness and

co-worker statements with the intent to defend Defendant Rabobank against not only the

Workers’ Compensation Proceeding but also the civil action likely to be asserted by

Plaintiff arising out of the employment relationship.” This was a sufficient allegation of

lack of prejudice to Rabobank.

       Moreover, we cannot say, as a matter of law, that Kaabinejadian’s claims in the

workers’ compensation proceeding were so different from his claims in this proceeding

that Rabobank must have been prejudiced. The workers’ compensation proceeding was




                                              16
“based on essentially the same set of facts” as the present action. (See Collier v. City of

Pasadena, supra, 142 Cal.App.3d at p. 925.)

       In the workers’ compensation proceeding, Kaabinejadian claimed that he had

suffered work-related emotional distress between April 2006 and his termination in July

2006. He alleged that he had complained “about the hostile work environment and being

subjected to ongoing discrimination.” He also alleged that his termination was

“retaliat[ory]” and that he was terminated “in the most inhumane, degrading, cruel and

hurtful way possible.”

       These allegations reasonably would have caused Rabobank to investigate

Kaabinejadian’s work-related circumstances between April and July 2006. In particular,

it would have investigated his complaints to Walker, which in turn would have revealed

other employees’ complaints about him. Rabobank would also have investigated the

circumstances of his termination. All of this would have prepared Rabobank to defend

against Kaabinejadian’s allegations in this action, which arise out of the same facts, even

though he is asserting different legal theories.3 If, as a factual matter, Rabobank did not


       3     Defendants point out that the ALJ’s opinion in the workers’ compensation
proceeding “does not mention national origin discrimination, wrongful termination, or
breach of contract. Not once.”
       In his pleadings, however, Kaabinejadian did assert that he had been “wrongfully
terminated.” The ALJ bifurcated the proceeding; she limited the first phase to various
threshold issues, which ultimately proved dispositive. Thus, she did not necessarily reach
or even mention all of Kaabinejadian’s claims.
       More to the point, defendants are arguing a purely factual issue that we cannot
resolve in the context of a demurrer.



                                             17
have an opportunity to investigate these matters, it can present evidence of that later. At

the present pleading stage, however, Kaabinejadian has adequately alleged the lack of

prejudice prong of equitable tolling as to Rabobank.

       Defendants do not dispute the other two prongs of the three-part test. In other

words, they do not claim that Kaabinejadian failed to allege that he filed the workers’

compensation proceeding in a timely manner or that he acted reasonably and in good

faith. We therefore conclude that Kaabinejadian has adequately alleged equitable tolling

as to the first three causes of action.

                                             IV

   FOURTH CAUSE OF ACTION: FAILURE TO STATE A CAUSE OF ACTION

       The trial court ruled that the judgment on Kaabinejadian’s workers’ compensation

claim barred his fourth cause of action, for intentional infliction of emotional distress,

apparently as a matter of res judicata (but possibly as a matter of collateral estoppel).

       Kaabinejadian contends that this ruling was erroneous. Defendants respond that

both proceedings involved the issue of workers’ compensation exclusivity, and that the

ALJ’s determination on this issue is dispositive.

       Separately and alternatively, however, defendants also argue that the trial court

could have sustained the demurrer to the fourth cause of action on other grounds,

including failure to allege sufficiently extreme and outrageous conduct. “‘“A judgment

of dismissal after a demurrer has been sustained without leave to amend will be affirmed

if proper on any grounds stated in the demurrer, whether or not the court acted on that



                                             18
ground.” [Citation.]’ [Citation.]” (Yee v. Cheung (2013) 220 Cal.App.4th 184, 192.)

Hence, we begin with the issue of the sufficiency of the allegations regarding defendants’

conduct. And we will end with this issue, as well, because we find it dispositive.

       “‘The elements of a cause of action for intentional infliction of emotional distress

are (1) the defendant engages in extreme and outrageous conduct with the intent to cause,

or with reckless disregard for the probability of causing, emotional distress; (2) the

plaintiff suffers extreme or severe emotional distress; and (3) the defendant’s extreme and

outrageous conduct was the actual and proximate cause of the plaintiff’s extreme or

severe emotional distress. [Citation.] “[O]utrageous conduct” is conduct that is

intentional or reckless and so extreme as to exceed all bounds of decency in a civilized

community. [Citation.] . . . [Citation.]’ [Citation.]” (So v. Shin (2013) 212 Cal.App.4th

652, 671.)

       “But ‘[l]iability for intentional infliction of emotional distress “‘does not extend to

mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’

[Citation.]” [Citations.]’ [Citation.]” (Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590,

1610.) A claim for unlawful discrimination, even if properly pleaded, does not

necessarily establish a claim for a cause of action for intentional infliction of emotional

distress. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 80; see also

Yurick v. Superior Court (1989) 209 Cal.App.3d 1116, 1123-1130.)

       Here, defendants’ assertedly extreme and outrageous conduct consisted of: (1)

Walker telling Kaabinejadian that she was not going to investigate the false accusations



                                              19
that other employees were making about him; (2) Walker saying that Kaabinejadian

should “‘hold up the mirror and look at [him]self’”; and (3) Walker instructing

Kaabinejadian, on false pretenses, to make a six-hour, 350-mile trip from Ontario to El

Centro, and then terminating him. This falls far short of conduct held insufficient in

other cases. (E.g., Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531,

534, 536-537 [employer allegedly deprived employee of union stewardship, transferred

him from one job to another, passed him over for promotion twice, assigned him to tasks

not appropriate to his labor grade, and terminated him].)

       Kaabinejadian relies on Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493.

There, however, the plaintiff’s supervisor “allegedly shouted at plaintiff in a rude, violent

and insolent manner as follows: ‘You goddam “niggers” are not going to tell me about

the rules. I don't want any “niggers” working for me. I am getting rid of all the

“niggers”; go pick up and deliver that 8-ton roller to the other job site and get your pay

check; you’re fired.’” (Id. at pp. 496-497.) When the plaintiff reported this to the

secretary of the corporation, the secretary “ratified and confirmed” the supervisor’s acts.

(Id. at p. 497.) Walker’s statement that Kaabinejadian should “‘hold up the mirror and

look at [him]self’” does not rise to the level of these blatant racial epithets. Moreover,

Kaabinejadian does not allege that there was anything particularly distressing about the

manner in which Walker terminated him, except that she made him travel six hours and

350 miles to El Centro. For all his complaints about the summer heat and the remoteness

of the location, this is, frankly, just a minor inconvenience.



                                              20
       Kaabinejadian also argues that the trial court erred by sustaining the demurrer

while defendants were resisting compliance with his discovery requests. He cites no

authority supporting the proposition that the trial court was obliged to await the outcome

of discovery before ruling on the demurrer. He does cite Budget Finance Plan v.

Superior Court (1973) 34 Cal.App.3d 794, but that case merely held that the plaintiff was

still entitled to take discovery after a demurrer was sustained with leave to amend. (Id. at

pp. 797-798.) That is not the procedural posture here.

       In any event, Kaabinejadian could not possibly have been prejudiced by the

unavailability of discovery. With respect to the first, second, and third causes of action,

we are reversing the judgment and allowing the action to proceed. With respect to the

fourth cause of action, if any of defendants’ conduct caused Kaabinejadian extreme and

severe emotional distress, presumably he already knew, even without discovery, what

that conduct was.

       We therefore conclude that the trial court properly sustained the demurrer to the

fourth cause of action.

                                             V

                                      DISPOSITION

       The judgment is reversed. The order sustaining the demurrer is reversed with

respect to the first, second, and third causes of action and affirmed with respect to the

fourth cause of action. The matter is remanded for further proceedings not inconsistent

with this opinion.



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    Kaabinejadian is awarded costs on appeal against defendants.

    NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                          RICHLI
                                                                   J.

WE CONCUR


RAMIREZ
                    P. J.


HOLLENHORST
                       J.




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