Sadeghi v. Chen CA2/8 ( 2023 )

Filed 2/23/23 Sadeghi v. Chen CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
IMAN SADEGHI, B312596
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC709376)
v.
YEN-CHUN CHEN et al.,
Defendants and Respondents.
APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Lia R. Martin, Judge. Affirmed in part
and reversed in part.
Fernald Law Group, Adam P. Zaffos and Brandon C.
Fernald for Plaintiff and Appellant.
Law Offices of Benjamin Davidson, Benjamin Davidson;
Bartko Zankel Bunzel & Miller, Charles Griffith Towle, and
Ronnie Shou for Defendants and Respondents.
_________________________
INTRODUCTION
Upon appellant Dr. Iman Sadeghi’s (Sadeghi) arrival at his
place of employment, he was given notice that his employment
was terminated and it would be his last day of work. Despite
requests by his supervisor to immediately turn in his work
laptop, Sadeghi did not do so and stated that he would return it
by the end of the day; he attempted to leave the office and office
building with the work laptop in his backpack. Instructed by the
supervisor to follow Sadeghi and retrieve the work laptop, three
of Sadeghi’s coworkers surrounded him, restrained him on the
ground, and physically accosted him while retrieving the laptop
from his backpack. Sadeghi sued his coworkers, alleging battery,
intentional infliction of emotional distress, and invasion of
privacy.
Based primarily on the sham pleading doctrine, the trial
court sustained a demurrer to Sadeghi’s claims without leave to
amend and dismissed this action as to the coworkers. Sadeghi
appeals from the judgment of dismissal and underlying order
sustaining the demurrer.
We reverse the judgment of dismissal. We conclude the
sham pleading doctrine does not apply. We also conclude
Sadeghi’s claims are not preempted by the workers’ compensation
exclusivity rule. We find Sadeghi sufficiently pleaded his causes
of action for battery and intentional infliction of emotional
distress; we reverse the order sustaining the demurrer in that
regard. We affirm in all other respects.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. Events Leading to Filing of Civil Complaint
Sadeghi is an award-winning computer graphics engineer,
who developed a novel digital hair rendering framework for the
production of the movie Tangled (Walt Disney Pictures (2010))
while working at Walt Disney Animation Studios.1 Sadeghi
joined Google as a software engineer in 2011 and remained
employed there for years.
Dr. Hao Li (Li) is co-founder and chief executive officer of
Pinscreen, Inc. (Pinscreen), a software startup that specializes in
the generation of animated 3D face models (i.e., avatars) by use
of a person’s photograph. In 2016, Li solicited Sadeghi to leave
Google and join Pinscreen’s leadership. On January 23, 2017,
Sadeghi accepted an offer to join Pinscreen as its vice president of
engineering. Two days later, Sadeghi gave his resignation letter
to Google.
According to Sadeghi’s original complaint, his employment
at Pinscreen was short-lived and lasted six months—from
February 2, 2017 to August 7, 2017. On August 7, 2017, within
an hour of Sadeghi’s arrival at Pinscreen’s office, Li and
Pinscreen’s chief financial officer Yen-Chun Chen (Chen) held a
meeting with Sadeghi and handed him a termination letter from
Pinscreen. Sadeghi “requested to meet Pinscreen’s full board of
directors before the termination decision was final, to which Li
responded, ‘sure.’ ” (Italics added.) “Before Sadeghi had a chance
to read the termination letter, Li suddenly lost his temper,
slammed the conference room door open and yelled at Sadeghi to
1 Sadeghi is credited as the co-inventor of the framework in
the patent filed by Disney.
3
leave the room, in front of Sadeghi’s coworkers, in a humiliating
and embarrassing manner.”
“Concerned by Li’s aggressive behavior, Sadeghi decided to
leave Pinscreen’s office.” Li, however, “physically blocked the
door of the office” and “demanded Sadeghi’s work laptop” which
was inside the backpack Sadeghi was wearing. Sadeghi told Li
he “intended to return the laptop before the end of business day”
after he “preserved his personal data” from the work laptop.
Sadeghi then left Pinscreen’s office and headed toward the
building elevators. Li “ordered some of Pinscreen’s employees to
follow Sadeghi.”
Li and three Pinscreen employees entered the elevator with
Sadeghi. After exiting the elevator, Sadeghi “attempted to leave
the building through the lobby” but the three Pinscreen
employees “under Li’s commands,” surrounded Sadeghi,
“grabbed” him and the backpack he was wearing, “violently
restrained him, forcibly opened his backpack and took possession
of Sadeghi’s work laptop.” Sadeghi “believe[d] that without Li’s
orders, the other employees would not have participated in
committing the crime.” As a result, Sadeghi suffered injuries to
his eye and his previously dislocated shoulder, requiring medical
attention and physical therapy. He also suffered severe mental
and emotional distress.
On June 11, 2018, Sadeghi filed a 160-page civil complaint
against Pinscreen and Li, alleging 17 causes of action. The
complaint alleged the information recited above. We note,
however, that elsewhere in the original complaint, Sadeghi
alleged: “In retaliation for [his] . . . whistleblowing regarding Li’s
. . . unlawful practices, Pinscreen illegally terminated Sadeghi, on
August 7, 2017, within Sadeghi’s first working hour.”
4
Sadeghi attached as an exhibit to the complaint a copy of
his employment contract and confidential information agreement
attachment (employment contract) with Pinscreen, signed
January 23, 2017. The employment contract contains a section
entitled “Company Property; Returning Company Documents”
with the following terms: Sadeghi agreed and acknowledged he
has “no expectation of privacy with respect to the Company’s
telecommunications, networking or information processing
systems . . . and that [his] activity and any files or messages on or
using any of those systems may be monitored or reviewed at any
time without notice.” (Italics added.) Sadeghi agreed that “any
property situated on the Company’s premises and owned by the
Company . . . is subject to inspection by Company personnel at
any time with or without notice.” The contract additionally
specified that “at the time of termination of the [work]
relationship, [Sadeghi] will deliver to the Company (and will not
keep in [his] possession . . .) any and all devices, records, data, . . .
equipment, other documents or property . . . belonging to the
Company.”
B. Sadeghi’s First Amended Complaint
A few months later, on October 5, 2018, Sadeghi filed a
274-page first amended complaint (FAC). In addition to
Pinscreen and Li, Sadeghi added as named defendants the three
Pinscreen employees—Chen, Liwen Hu (Hu), and Han-Wei Kung
(Kung)—who allegedly assaulted him. We collectively refer to
Chen, Hu, and Kung as respondents. The FAC contained
15 causes of action total, only three of which were pleaded
against respondents, namely, (1) battery, (2) intentional infliction
of emotional distress (IIED), and (3) invasion of privacy.
5
Overall, the FAC alleged the same facts included in the
original complaint. It repeated the allegation that upon being
provided the termination letter from Li and Chen, Sadeghi
requested to meet with Pinscreen’s board of directors before the
termination decision was final, to which Li agreed. Elsewhere in
the FAC, however, Sadeghi also alleged he was “illegally
terminated . . . within [his] first working hour” on August 7,
2017. The FAC included a copy of the termination letter, which
stated: Sadeghi’s “last day of employment with Pinscreen, Inc., is
August 7, 2017” and proposed a severance package in exchange
for a general release by Sadeghi. The letter also “remind[ed]”
Sadeghi of his “continuing obligation to uphold the provisions of
the [employment contract].”
The FAC also reiterated the allegations that Li demanded
that Sadeghi return the work laptop during the meeting and
Sadeghi’s intention to return the laptop “before the end of
business day . . . after he preserved his personal data.” It
repeated that respondents surrounded and restrained Sadeghi,
opened his backpack, and took possession of the work laptop
“under Li’s commands.” It also repeated that the altercation
occurred inside the building lobby. The altercation was captured
on the security cameras of the building where Pinscreen’s office is
located.
C. Demurrer to the FAC
Pinscreen and Li filed a demurrer and a motion to strike
portions of Sadeghi’s FAC, joined by respondents. They argued
Sadeghi’s battery and IIED claims are barred because it is
subject to the workers’ compensation exclusive remedy rule.
They further argued the battery claim is “fatally deficient” as it
did not allege respondents “intended to harm or offend” Sadeghi.
6
They also argued Sadeghi’s invasion of privacy claim fails
because he had no expectation of privacy on a work-issued
computer and referred to terms in the employment contract that
states as such.
On April 11, 2019, the trial court held the hearing on the
demurrer and motion to strike portions of the FAC. The trial
court ruled: The FAC “contains 439 paragraphs of allegations, in
74 pages, plus approximately 200 pages of exhibits. It includes
emails, skypes, diagrams, pictures, policies, conversations, and
day-to-day actions of parties and non-parties.” The court struck
the FAC “as not drawn in conformity with the laws of the state
and rules of court” and for containing “irrelevant and improper
material” (per Code Civ. Proc., §§ 425.10, subd. (a)(1) & 436,
subds. (a), (b)). The court provided Sadeghi a 20-day window to
file an amended complaint in conformity with Code of Civil
Procedure section 425.10.
D. Sadeghi’s Second Amended Complaint
On May 1, 2019, Sadeghi filed a second amended complaint
(SAC) which was substantially shorter in length—35 pages. The
SAC alleged 15 causes of action, three of which were against
respondents: (1) battery; (2) IIED; and (3) invasion of privacy.
The SAC alleged, in relevant part:
On August 7, 2017, “Pinscreen terminated Sadeghi within
his first working hour.”
Battery: Respondents committed battery on Sadeghi via
“intentional, non-consensual, offensive, and harmful physical
contact” in that they “intentionally touched and grabbed Sadeghi
and his backpack,” “forcefully restrained him, physically attacked
him, and violently shoved him to the ground.” The battery “did
not fall within the reasonably anticipated conditions of Sadeghi’s
7
role as the Vice President of Engineering at Pinscreen” and “was
committed outside of Pinscreen’s premises and outside the course
and scope—and after—Sadeghi’s employment.” (Italics added.)
Respondents “followed Li’s orders” and “were acting within the
course and scope of their employment” when they “physically
attacked [Sadeghi] outside of Pinscreen’s premises and after [his]
termination.” (Italics added.) As a “direct, foreseeable, and
proximate result of [respondents’] battery,” Sadeghi was harmed
and suffered injuries to his left eye and right shoulder, requiring
medical attention and physical therapy. He also sought
psychotherapy and suffered from posttraumatic stress disorder
(PTSD).
Invasion of Privacy: Sadeghi had a “reasonable expectation
of privacy in his personal backpack.” Sadeghi told Li he
“intended to return the laptop before the end of business day, on
August 7, 2017, . . . after he preserved his personal data” from
the laptop. Pinscreen “had no policy prohibiting storing personal
data on one’s computer, and no such policy was ever
communicated to Sadeghi.” Respondents “followed Li’s orders”
and “were acting within the course and scope of their
employment” when they “forcefully intruded into Sadeghi’s
personal belongings and violated Sadeghi’s right to privacy in a
manner that is highly offensive to a reasonable person.”
Respondents “intentionally intruded into Sadeghi’s backpack . . .
and took his work laptop by force.” The invasion of privacy “did
not fall within the reasonably anticipated conditions of Sadeghi’s
role as the Vice President of Engineering at Pinscreen” and was
committed “outside Pinscreen’s premises and outside the course
and scope—and after—Sadeghi’s employment.” (Italics added.)
As a result of respondents invading Sadeghi’s privacy, Sadeghi
8
suffered PTSD and severe mental and emotional distress, and
sought psychotherapy.
IIED: Respondents’ “extreme and outrageous actions
caused Sadeghi to suffer severe mental and emotional distress
due to . . . being brutally battered, forcefully invaded, and
physically injured.” Respondents’ conduct was outrageous
because they “acted intentionally and unreasonably with the
recognition that their actions are likely to cause Sadeghi mental
and emotional distress.” Sadeghi was diagnosed with PTSD as a
result of the battery and invasion of his privacy. Sadeghi’s PTSD
and physical injuries to his right shoulder “are of such
substantial and enduring quality that no reasonable person in
civilized society should be expected to endure them.” Sadeghi
sought psychotherapy as a result.
The SAC also alleged: Li “refused to produce the security
camera footage of the incident during the discovery” that was
“later obtained from Pinscreen’s building security.” The SAC
included a link to the security camera footage.2
E. Demurrer to the SAC
On June 5, 2019, respondents and Li jointly filed a
demurrer to the SAC pursuant to Code of Civil Procedure section
430.10, subdivisions (e) and (f). They argued Sadeghi failed to
allege with particularity sufficient facts in support of his causes
of action and that his claims were barred or preempted by the
2 Pinscreen, Inc. office building security camera footage
attached to the second amended complaint:
[as of February 23, 2023], archived at
.
9
exclusive remedy provisions of workers’ compensation law. They
argued Sadeghi’s “self-serving allegations” in the SAC “to situate
the battery off-premises and post-termination contradict his
previous verified allegations.” They contended the SAC and prior
iterations of the complaint admit that the alleged battery “was
provoked by Sadeghi’s decision to stow his work computer in his
backpack,” his “refus[al] to relinquish the computer upon request,
and attempt to leave the premises.” They also argued Sadeghi
had “no cognizable expectation of privacy” in the work laptop and
that returning the laptop (or any property belonging to
Pinscreen) upon Sadeghi’s termination from employment was
specified in the employment contract he had signed.
On November 7, 2019, Sadeghi filed his opposition to
respondents’ demurrer.
F. Hearing and Ruling
On November 21, 2019, the trial court held a hearing on
the demurrer to the SAC. We were not provided a reporter’s
transcript of this hearing. We discern from the pleadings
included in the record before us that after argument the trial
court sustained the demurrer to the SAC’s causes of action for
battery, IIED, and invasion of privacy without leave to amend.
The court ruled: “The original complaint alleges the
retrieval [of the work laptop] occurred after Li agreed to having
the full board weigh in on the adverse action, and on the
premises. In the [FAC] he alleged that this occurred in the
building during his termination. The [SAC] alleged that it
occurred off the premises after he was terminated.” The court
cited to the “sham pleading doctrine” and reasoned that
allegations in an original pleading that rendered it vulnerable to
demurrer or other attack cannot simply be omitted without
10
explanation. The court referred to the fact that respondents’
demurrer to the FAC argued that Sadeghi’s claims were barred
under the exclusivity of workers’ compensation. The court held
Sadeghi’s “allegations cannot be changed as to time and location
[in the SAC] to avoid Workers Compensation, without
explanation.”
G. Dismissal
On February 1, 2021, respondents filed a motion for entry
of judgment of dismissal following the court’s sustaining the
demurrer to the SAC without leave to amend. They argued
dismissal is proper because there are no remaining causes of
action against respondents.3 They further argued dismissal
should be entered with prejudice.
On February 25, 2021, Sadeghi filed his opposition to the
motion for entry of dismissal. He argued entry of dismissal is
“discretionary” and requested the court “exercise its discretion
and defer entering judgment [of dismissal] until the conclusion of
this litigation” such that “any appeal that might be filed can
address the totality of the issues and avoid piecemeal resolution.”
The trial court held a hearing on March 10, 2021. We were
not provided a reporter’s transcript of this hearing. The record
provides the trial court granted the motion and dismissed
respondents with prejudice, pursuant to Code of Civil Procedure
section 581, subdivision (f)(1). It found “not persuasive”
3 Meanwhile, Sadeghi filed a third amended complaint (TAC)
against Pinscreen and Li on December 6, 2019; respondents were
not named as defendants in the TAC. Issues pertaining to
Sadeghi’s TAC are currently on appeal before us in appeal case
No. B316405 Sadeghi v. Pinscreen (app. pending).
11
Sadeghi’s argument to delay the judgment of dismissal until the
entire case is concluded.
On March 12, 2021, notice of entry of the judgment of
dismissal with prejudice was filed.
This appeal followed.
DISCUSSION
Sadeghi argues the trial court erred in finding the SAC did
not sufficiently plead a cause of action for battery, invasion of
privacy, and IIED. He contends the SAC is not a sham pleading
and that his claims are not barred by workers’ compensation
exclusivity.
We are not convinced the sham pleading doctrine should be
applied here. We also conclude the workers’ compensation
exclusivity rule does not bar Sadeghi’s claims, given the specific
circumstances of this case which trigger an exception. We have
analyzed Sadeghi’s three causes of action and conclude he
sufficiently pleaded his battery and IIED claims, but not his
invasion of privacy claim. We thus reverse as to the claims for
battery and IIED and affirm the order sustaining the demurrer to
the invasion of privacy claim without leave to amend.
A. Lack of Reporter’s Transcript
As a preliminary matter, we address the fact that the
record on appeal does not include a reporter’s transcript of the
November 21, 2019 hearing on respondents’ demurrer to the SAC
and the March 10, 2021 hearing on the motion for judgment of
dismissal. However, we conclude the absence of a reporter’s
transcript or suitable substitute is not necessary for our review of
the trial court’s order sustaining the demurrer. (See Lin v.
Coronado (2014) 232 Cal.App.4th 696, 700, fn. 2 [where appeal is
12
from sustaining of demurrer, reporter’s transcript or suitable
substitute is not necessary]; see also Chodos v. Cole (2012)
210 Cal.App.4th 692, 699 [reporter’s transcript not necessary
where appellate issue is “a purely legal issue based on the filings
before the trial court”].)
A reporter’s transcript might have been needed to permit
appellate review of the trial court’s decision to deny leave to
amend the SAC. But Sadeghi has not presented any argument
on appeal that the trial court abused its discretion in denying
leave to amend. Therefore, a record of the oral proceedings is not
necessary for our review.
B. Standard of Review
In reviewing an order sustaining a demurrer, we examine
the operative complaint de novo to determine whether it alleges
facts sufficient to state a cause of action under any legal theory.
(King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1046 (King);
Dudek v. Dudek (2019) 34 Cal.App.5th 154, 163 (Dudek).)
In addition, “ ‘[w]hen 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; if not, there has
been no abuse of discretion and we affirm.” ’ ” (Dudek, supra,
34 Cal.App.5th at p. 163, italics added.) Here, Sadeghi shoulders
the burden to show a reasonable possibility the operative
complaint can be amended to state a cause of action. (Id. at
pp. 163–164; King, supra, 5 Cal.5th at p. 1050.) He can make
this showing in the first instance to the appellate court. (Roman
v. County of Los Angeles (2000) 85 Cal.App.4th 316, 322.)
13
C. Applicable Law
1. Demurrers Generally
A demurrer tests the legal sufficiency of the challenged
pleading. (Milligan v. Golden Gate Bridge Highway &
Transportation Dist. (2004) 120 Cal.App.4th 1, 5; Blank v.
Kirwan (1985) 39 Cal.3d 311, 318.) The judgment of dismissal
after a sustained demurrer must be affirmed if the challenged
pleading fails to plead an essential element or if the allegations
disclose some defense or bar to recovery. (Brown v. Crandall
(2011) 198 Cal.App.4th 1, 8.) We are to affirm if any of the
grounds for demurrer raised by respondents is well taken and
disposes of the three causes of action of the SAC pending before
us. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
We accept as true all material facts properly pleaded in the
SAC, but do not assume the truth of contentions, deductions, or
conclusions of fact and law. (Dudek, supra, 34 Cal.App.5th at
p. 154; Estate of Holdaway (2019) 40 Cal.App.5th 1049, 1052.)
“We give the complaint a reasonable interpretation and treat the
demurrer as admitting all material facts properly pleaded that
are not inconsistent with other allegations, exhibits, or judicially
noticed facts.” (Morris v. JPMorgan Chase Bank, N.A. (2022)
78 Cal.App.5th 279, 292, italics added.) The allegations that we
accept as true necessarily include the contents of any exhibits
attached to the complaint, and in the event of a conflict between
the pleading and an exhibit, the facts contained in the exhibit
take precedence over and supersede any inconsistent or contrary
allegations in the pleading. (Jibilian v. Franchise Tax Bd. (2006)
136 Cal.App.4th 862, 864, fn. 1; Building Permit Consultants,
Inc. v. Mazur (2004) 122 Cal.App.4th 1400, 1409; see Schmier v.
City of Berkeley (2022) 76 Cal.App.5th 549, 553, fn. 4.)
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2. Workers’ Compensation Exclusivity
California’s Workers’ Compensation Act (WCA) (Lab.
Code4, § 3600 et seq.) is a comprehensive statutory scheme that
provides employees an exclusive remedy against their employers
for injuries arising out of and in the course of employment.
(Melendrez v. Ameron Internat. Corp. (2015) 240 Cal.App.4th
632, 638 (Melendrez); King, supra, 5 Cal.5th at p. 1046.)
Ordinarily, an employee’s rights against the employer for on-the-
job injuries lie solely under the workers’ compensation law—i.e.,
when the “conditions of compensation” are present (§ 3600), the
employer is immune from civil damages liability because workers’
compensation is the injured employee’s “exclusive remedy.”
(§§ 3600–3602.)
In addition, to prevent employees from circumventing the
exclusivity rule by bringing lawsuits for work-related injuries
against coemployees, who in turn would seek indemnity from
their employers, the Legislature also provides immunity to
coemployees acting within the scope of their employment.
(§ 3601, subd. (a); Torres v. Parkhouse Tire Service, Inc. (2001)
26 Cal.4th 995, 1002 (Torres).) “If the coemployee was not
‘engaged in any active service for the employer’ [when the injury
occurred,] the coemployee was not acting within the scope of
employment.” (Hendy v. Losse (1991) 54 Cal.3d 723, 740
(Hendy).)
An essential component of the workers’ compensation
“conditions of compensation” is that the injury must have arisen
“out of and in the course of the employment.” (See § 3600;
Shoemaker v. Myers (1990) 52 Cal.3d 1, 15 (Shoemaker).) Section
4 Undesignated statutory references are to the Labor Code.
15
3600 provides us with a two-prong test to determine whether an
injured employee’s claim is preempted by the WCA’s exclusive
remedy provisions.
First, the injury must also occur in the course of the
employment; this concept ordinarily refers to the time, place, and
circumstances under which the injury occurs. (Melendrez, supra,
240 Cal.App.4th at p. 639.) Thus, employees are in the course of
their employment when they do those reasonable things which
the employment contract expressly or impliedly permits them to
do. (Ibid.) The requirement that the employee be acting in the
course of employment “generally means the injury happened at a
time when the employee was working and in the place of
employment.” (Lee v. West Kern Water Dist. (2016) 5 Cal.App.5th
606, 624–625 (Lee).)
Second, the statute requires that an injury arise out of the
employment. (Melendrez, supra, 240 Cal.App.4th at p. 639.) It
has long been settled that an injury arises out of employment
when it occurs by reason of a condition or incident of the
employment; that is, the employment and the injury must be
linked in some causal fashion. (Ibid.) “It is a looser concept of
causation than the concept of proximate cause employed in tort
law.” (Lee, supra, 5 Cal.App.5th at pp. 624–625.) Whether an
employee’s injury arose out of and in the course of his
employment is generally a question of fact to be determined in
light of the circumstances of the particular case. (Melendrez, at
p. 639.)
Although the “conditions of compensation” may apply (i.e.,
injury to employee within course and scope of employment), the
claim may nonetheless be remediable in an action at law if it falls
within one of the few recognized exceptions to the workers’
16
compensation exclusive remedy rule. One such exception
expressly provided by the Legislature in section 3601, subdivision
(a)(1), is “[w]hen the injury . . . is proximately caused by the
willful and unprovoked physical act of aggression of the other
employee.” (Ibid., italics added.) An “unprovoked physical act of
aggression” (per § 3601, subd. (a)) is “unprovoked conduct
intended to convey an actual, present, and apparent threat of
bodily injury.” (See Torres, supra, 26 Cal.4th at p. 1005.) Stated
more simply, an injured employee ordinarily must show that the
coemployee acted with the specific intent to injure. (Id. at
p. 1010; see CACI No. 2811.)
3. Sham Pleading Doctrine
Under the sham pleading doctrine, “[i]f a party files an
amended complaint and attempts to avoid the defects of the
original complaint by either omitting facts which made the
previous complaint defective or by adding facts inconsistent with
those of previous pleadings, the court may take judicial notice of
prior pleadings and may disregard any inconsistent allegations.”
(Colapinto v. County of Riverside (1991) 230 Cal.App.3d 147, 151;
see Hendy, supra, 54 Cal.3d at pp. 742–743 [affirming an order
sustaining demurrer without leave to amend when plaintiff filed
an amended complaint omitting harmful allegations from the
original complaint].) “Where no explanation for an inconsistency
is offered, the trial court is entitled to conclude that the pleading
party’s cause of action is a sham and sustain the demurrer
without leave to amend.” (Zakk v. Diesel (2019) 33 Cal.App.5th
431, 447; accord, Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th
408, 425–426; Amarel v. Connell (1988) 202 Cal.App.3d 137, 144
[sham pleading rule applied where allegations in prior complaint
that are destructive of the cause of action are omitted in the
17
subsequent pleading without a valid explanation].) “ ‘A pleader
may not attempt to breathe life into a complaint by omitting
relevant facts which made his previous complaint defective.’ ”
(Berman v. Bromberg (1997) 56 Cal.App.4th 936, 946.)
Earlier pleadings may not be considered “to bind the
pleader to an untrue and erroneous admission against interest
which was inadvertently contained therein, but which has been
subsequently disavowed and corrected in an amended pleading
filed by leave of court, in which, or accompanying which,
satisfactory explanation is made of the reason which caused the
original erroneous statement. . . . If courts were to bind litigants
to inadvertent untrue statements of facts and forbid them the
inherent right to correct the false by substituting the true facts,
they would become partisans to miscarriages of justice.”
(Jackson v. Pacific Gas & Electric Co. (1949) 95 Cal.App.2d 204,
211.) Similarly, the reviewing court in Macomber v. State (1967)
250 Cal.App.2d 391, 399 explained that the sham pleading
doctrine properly may be used to “discourage sham and
untruthful pleadings,” but concluded the doctrine was not
properly applied to the case before it, which was “not a situation
where the contradiction of the original allegation carries with it
the onus of untruthfulness.”
D. The Sham Pleading Doctrine Does Not Apply
Respondents argue the SAC omitted or altered certain
relevant allegations pleaded in the original complaint and the
FAC. They maintain the SAC did not allege that Sadeghi’s
August 7, 2017 termination was stayed until after a meeting with
Pinscreen’s board of directors, per his request to Li. Instead, the
SAC alleged Sadeghi was terminated from employment
immediately at the meeting with Li, and that the altercation took
18
place “after his termination.” Respondents also argue the SAC
changed the location of the altercation—from within the office
building premises to outside the office building. They refer to the
complaint and FAC’s similar allegations that Sadeghi was
restrained by respondents when he “attempted to leave the
building through the lobby,” indicating he was still in the
building, where as the SAC alleged the altercation took place
“outside of Pinscreen’s premises.”
Sadeghi, however, contends the trial court’s finding that
the sham pleading doctrine applied to the SAC was erroneous.
He argues the “amendments made were in response to the trial
court’s order and involved drastic revision of Sadeghi’s causes of
action against Respondents, including the removal of evidentiary
allegations.” He contends he did not amend the pleading to omit
harmful allegations; “[t]o the contrary, the [SAC] was drastically
amended from its previous form because the trial court ordered it
to be revised.”
Respondents contend Sadeghi changed the allegations in
the SAC so as to avoid the application of the workers’
compensation exclusivity rule which was argued in respondents’
prior demurrer (to the FAC). They argue the SAC is a sham
pleading that omitted or altered harmful allegations to avoid
preemption by the exclusive remedy provisions of the WCA.
We disagree.
It is true the original complaint and FAC alleged that
Sadeghi requested to meet Pinscreen’s board of directors “before
the termination decision was final,” to which Li agreed; however,
the complaint and FAC also alleged that Pinscreen “illegally
terminated” Sadeghi “within [his] first working hour” on August
7, 2017—which is what Sadeghi pleaded in the SAC. The original
19
complaint and the FAC each included allegations that differed
from other allegations within the body of the same
complaint/FAC. Sadeghi argues he made “drastic revisions” and
omitted many allegations. And it shows: he went from a
160-page complaint and 274-page FAC to a 35-page SAC.
Amendments are allowed where an earlier pleading contains
erroneous allegations as a result of mistake or inadvertence.
(Dones v. Life Insurance Co. of North America (2020)
55 Cal.App.5th 665, 688 (Dones).) Honest complainants are not
precluded from correcting erroneous allegations or preventing the
correction of ambiguous facts. (Hahn v. Mirda (2007)
147 Cal.App.4th 740, 751.)
As to the location of the altercation, the security camera
footage included in the SAC shows that the information
contained in the complaint, FAC, and SAC are all correct. In
fact, respondents began restraining Sadeghi in the building
lobby, and continued until it escalated into a physical altercation
when outside the building.
Further, the SAC alleged that Li had “refused to produce
the security camera footage of the incident during the discovery”
and that Sadeghi “later obtained [the footage] from Pinscreen’s
building security.” It is a likely and plausible explanation that
after having obtained and reviewed the footage, Sadeghi
amended the allegation so as to include that the altercation itself
took place immediately outside the building. We remind
respondents that the sham pleading doctrine cannot be
mechanically applied; it is not intended to prevent honest
complainants from correcting erroneous allegations or to prevent
the correction of ambiguous facts. (Dones, supra, 55 Cal.App.5th
at p. 688.)
20
We are thus not convinced the sham pleading doctrine was
correctly applied here.
E. The Trial Court Erred in Sustaining the Demurrer to the
Battery Cause of Action
1. Workers’ Compensation Exclusivity Does Not Bar the
Battery Claim
“[W]hen a complaint affirmatively alleges facts indicating
that the [WCA] applies, no civil action will lie, and the complaint
is subject to a general demurrer unless it states additional facts
that negate application of the exclusive remedy rule.” (Arriaga v.
County of Alameda (1995) 9 Cal.4th 1055, 1060.)
We find that while the SAC alleged Sadeghi’s injury arose
out of the employment in that the injury was linked in some
causal fashion to employment5 (Melendrez, supra,
240 Cal.App.4th at p. 639)—i.e., the injury would not have
happened if Sadeghi was not a Pinscreen employee who had just
been terminated—we find the SAC adequately alleged Sadeghi’s
injury did not occur in the course of the employment. Sadeghi was
restrained and forced to the ground after having been given
written notice of termination of employment and after he left
with the work laptop from Pinscreen’s office. (See Lee, supra,
5 Cal.App.5th at pp. 624–625 [employee acting in the course of
employment “generally means the injury happened at a time
when the employee was working and in the place of
5 This causation requirement differs markedly from ordinary
tort principles, in that “ ‘ “ ‘[a]ll that is required is that the
employment be one of the contributing causes without which the
injury would not have occurred.’ ” ’ ” (South Coast Framing, Inc.
v. Workers’ Comp. Appeals Bd. (2015) 61 Cal.4th 291, 297–298.)
21
employment”]; see Melendrez, at p. 639.) Thus, we find the injury
did not occur in the course of Sadeghi’s employment.
In addition, a close examination of the allegations of the
SAC reveals that Sadeghi did adequately plead a battery that
met the exception to exclusivity stated in section 3601,
subdivision (a)(1). First, the allegations provide that Pinscreen is
a software startup that specializes in the generation of animated
3D face models/avatars, employing Li (its chief executive officer),
respondent Chen (its chief financial officer), and the other
respondents (its employees). We cannot think of a reason or
logical connection in which physically assaulting or attacking a
coemployee is in the course of respondents’ employment with
Pinscreen. Assaulting and/or battering Sadeghi is not one of
“those reasonable things which [their] contract with [their]
employment expressly or impliedly permits [them] to do.”
(Melendrez, supra, 240 Cal.App.4th at p. 639.) We agree with
Sadeghi that this qualifies as conduct in which an employee steps
out of its proper role and is of questionable relationship to their
employment at Pinscreen. (See Fermino v. Fedco, Inc. (1994)
7 Cal.4th 701, 713, 717–718, 722–723 (Fermino).)
Second, the allegations of the SAC confirm Sadeghi’s injury
was proximately caused by the “willful” and “unprovoked”
physical act of aggression of the other employees—here,
respondents. (§ 3601, subd. (a)(1).) Respondents argue Sadeghi
did not allege a “willful intent to injure” in his SAC. We disagree.
The SAC provides respondents “intentionally touched and
grabbed Sadeghi and his backpack,” “forcefully restrained him,
physically attacked him, and violently shoved him to the ground.”
In situations where employees commit violent, injurious acts
against a coemployee, the trier of fact could reasonably infer an
22
intent to injure to take the actions outside the exclusivity rule’s
protection. (See Torres, supra, 26 Cal.4th at p. 1009.) The
information alleged amounts to “conduct intended to convey an
actual, present, and apparent threat of bodily injury.” (Id. at
p. 1005.)
Moreover, respondents’ physical act of aggression is
“unprovoked,” in that the “initial physical aggressor[s]” (§ 3600,
subd. (a)(7)) were respondents, not Sadeghi. This is consistent
with section 3600’s ban on compensation to a physical aggressor
who first introduces an element of physical violence into the
confrontation, thus creating the risk of injury. (Torres, supra,26 Cal.4th at pp. 1004–1005.) Respondents’ argument that
Sadeghi “provoked” the altercation by attempting to leave
Pinscreen with the work laptop is not well taken, and is not
supported by case law. (See ibid.)
Respondents’ conduct transgressed the limits of the
compensation bargain and falls outside the workers’
compensation scheme. Because Sadeghi’s battery cause of action
included allegations that indicated these were unprovoked
physical acts of aggression, he met the exception to workers’
compensation exclusivity.
2. The SAC Alleged Sufficient Facts to Constitute
Battery
The elements of a cause of action for civil battery are:
“(1) defendant intentionally performed an act that resulted in a
harmful or offensive contact with the plaintiff’s person;
(2) plaintiff did not consent to the contact; and (3) the harmful or
offensive contact caused injury, damage, loss or harm to
plaintiff.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516,
526–527.)
23
The pleading alleges a harmful or offensive physical contact
from respondents grabbing Sadeghi and his backpack, forcefully
restraining him, physically attacking him, and violently shoving
him to the ground. Sadeghi alleged the contact was “non-
consensual.” He also alleged he was harmed by the altercation
and suffered injuries to his left eye and right shoulder, requiring
medical attention and physical therapy. He sought
psychotherapy and suffered from PTSD.
Based on the foregoing, the trial court should have
overruled the demurrer to the SAC’s battery claim.
F. The Trial Court Properly Sustained the Demurrer to the
Invasion of Privacy Cause of Action
1. Workers’ Compensation Exclusivity Does Not Bar the
Invasion of Privacy Claim
Although the nature of the harm from breach of the right to
privacy constitutes a personal injury that would otherwise fall
within workers’ compensation exclusivity, such claims fall within
an exception for misconduct outside the normal risk of
employment. (Operating Engineers Local 3 v. Johnson (2003)
110 Cal.App.4th 180, 187 (Operating Engineers).)
As set out above, we find the SAC alleged Sadeghi’s injury
did not occur in the course of the employment, in that the injury
occurred after Sadeghi was terminated from employment and
after he left Pinscreen’s office with the work laptop. Thus, the
alleged invasion of privacy did not occur in the course of
Sadeghi’s employment.
24
2. The SAC Did Not Allege Sufficient Facts to
Constitute Invasion of Privacy
The common law tort of invasion of privacy by intrusion
has two elements: (1) intrusion into a private place, conversation,
or matter, (2) in a manner highly offensive to a reasonable
person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th
200, 231.) Sadeghi must show respondents “penetrated some
zone of physical or sensory privacy surrounding” him and that he
had an objectively reasonable expectation of privacy. (Id. at
pp. 231–232.)
We have reviewed the pleadings and find Sadeghi has not
adequately alleged that he had an objectively reasonable
expectation of privacy in the contents of the work laptop.
Upon being hired by Pinscreen, Sadeghi signed an
employment contract that expressly provides he agreed and
acknowledged that he has “no expectation of privacy with respect
to the Company’s telecommunications, networking or information
processing systems . . . and that [his] activity and any files or
messages on or using any of those systems may be monitored or
reviewed at any time without notice.” (Italics added.) Sadeghi
agreed that “any property situated on the Company’s premises
and owned by the Company . . . is subject to inspection by
Company personnel at any time with or without notice.” (Italics
added.) The contract additionally specified that “at the time of
termination of the [work] relationship, [Sadeghi] will deliver to
the Company (and will not keep in [his] possession . . .) any and
all devices . . . or property . . . belonging to the Company.”
(Italics added.)
25
Sadeghi argues he had a reasonable expectation of privacy
in his personal backpack. However, given the unique
circumstances of this case, we agree with respondents that this is
a distinction without a difference, as an employee could evade
Pinscreen’s right to inspect or review the work laptop simply by
placing it inside his backpack, “thereby creating an impenetrable
force field of privacy around that [work laptop] precluding any
encroachment.”
As Sadeghi has not adequately pleaded facts to state an
invasion of privacy claim, it fails on demurrer.
G. The Trial Court Erred in Sustaining the Demurrer to the
IIED Cause of Action
We preliminarily note that because we concluded Sadeghi
did not plead sufficient facts to establish invasion of privacy, his
cause of action for emotional distress fails to the extent it is
tethered to the invasion of privacy claim. We only address his
IIED claim as derivative of the battery claim.
1. Workers’ Compensation Exclusivity Does Not Bar the
IIED Claim
The same rules specified above apply to on-the-job
emotional distress injuries. So long as the basic conditions of
compensation are otherwise satisfied (§ 3600) and the employer’s
conduct does not exceed the risks inherent in the employment
relationship, an employee’s emotional distress injuries are
subsumed under the exclusive remedy provisions of workers’
compensation. (Livitsanos v. Superior Court (1992) 2 Cal.4th
744, 754.)
26
Respondents argue that in the event we find the battery
claim was not subject to workers’ compensation exclusivity, the
IIED claim is still preempted by the exclusive remedy rule
because there is no applicable fundamental public policy.
Respondents’ argument has no merit, as that is but one instance
that circumvents application of the WCA’s exclusivity. Emotional
distress actions based on the outrageous conduct of employers
and/or fellow employees will be barred by workers’ compensation
exclusivity if the underlying conduct is a “normal” part of the
employment relationship, such as demotion, promotion, criticism
of work practices, and friction in negotiations as to grievances.
(Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 160
(Cole).) This is so even if the conduct could be characterized as
“manifestly unfair, outrageous, harassment, or intended to cause
emotional disturbance.” (Ibid.) However, conduct in which an
employer or employee steps out of its proper role, or conduct of
questionable relationship to the employment, is not encompassed
within the compensation bargain and is not subject to the
exclusivity rule. (Fermino, supra, 7 Cal.4th at pp. 713, 717–718,
722–723.)
As already discussed, the conditions of compensation are
not present as Sadeghi’s injury did not occur in the course of the
employment. He was restrained and forced to the ground after
having been given written notice of the immediate termination of
his employment and after having left Pinscreen’s office with the
work laptop. (See Lee, supra, 5 Cal.App.5th at pp. 624–625.)
Furthermore, dismissal from employment is generally a
normal risk inherent in an employment relationship; it
necessarily arises from employment because it is an event ending
the employer-employee relationship. (Shoemaker, supra,
27
52 Cal.3d at pp. 11, 18, 25.) Thus, unless the employee’s
discharge was accompanied by misconduct exceeding the normal
risks of the employment relationship or the discharge violates
some fundamental public policy, consequential employee
emotional distress is not remediable in an action at law. (Id. at
pp. 19–20 [injuries arising from termination of employment
“ordinarily arise out of and occur in the course of the
employment”].)
Ordinarily, reprimands by a supervisor, and the resulting
anxiety, embarrassment and anguish, are a normal part of the
employment relationship. (Operating Engineers, supra,
110 Cal.App.4th at p. 189.) This is so even where “tempers flare
and the employer engages in conduct rising to the level of
intentional infliction of emotional distress.” (Ibid.) However, a
supervisor’s intentional dissemination of the reprimand to other
employees having no interest in the matter may “in extreme
circumstances exceed the known and inherent risks of the
workplace.” (Id. at p. 190.)
Here, Sadeghi was not only terminated from employment,
he was also physically attacked and injured while leaving the
building. Respondents were not acting within the scope of their
employment when they “restrained,” “grabbed,” and “physically
attacked” Sadeghi. As explained above, respondents’ conduct
thus exceeded the normal risks of the employment relationship.
The SAC adequately alleged that respondents’ willful and
unprovoked physical act of aggression caused Sadeghi’s
emotional injuries as well as his physical injuries. The conduct
inflicting emotional distress similarly lies outside the purview of
the WCA’s exclusivity provision. (Cunningham v. FedEx Express
(9th Cir. 2017) 693 Fed.Appx. 561, 562.)
28
2. The SAC Alleged Sufficient Facts to Constitute IIED
A cause of action for IIED requires: (1) extreme and
outrageous conduct by respondents with the intention of causing,
or reckless disregard of the probability of causing, emotional
distress; (2) severe or extreme emotional distress; and (3) actual
and proximate causation of the emotional distress by the
respondents’ outrageous conduct. (Grenier v. Taylor (2015)
234 Cal.App.4th 471, 486.) Conduct is considered outrageous
when it is “so extreme as to exceed all bounds of that usually
tolerated in a civilized community.” (Ibid.)
The three elements of IIED are adequately pleaded in the
SAC. Respondents’ “extreme and outrageous actions caused
Sadeghi to suffer severe mental and emotional distress due to . . .
being brutally battered, forcefully invaded, and physically
injured” all for the purpose of retrieving a laptop. This is in no
way a normal part of the employment relationship. (Cole, supra,
43 Cal.3d at p. 160.) Sadeghi was diagnosed with PTSD as a
result of the battery and sustained physical injuries to his left eye
and right shoulder. The battery he experienced was “of such
substantial and enduring quality that no reasonable person in
civilized society should be expected to endure them.” Sadeghi
sought psychotherapy as a result.
Accepting these allegations as true, the SAC sufficiently
states a cause of action for IIED against respondents.
H. Sadeghi Forfeited the Issue of Whether the Trial Court
Erred in Denying Him Leave to Amend the Invasion of
Privacy Claim
The trial court sustained the demurrer without granting
Sadeghi leave to amend the SAC as to respondents. As we find
29
sufficient the allegations in support of the battery and IIED
claims, the only claim left subject to amendment is the invasion
of privacy claim.
“ ‘Generally it is an abuse of discretion to sustain a
demurrer without leave to amend if there is any reasonable
possibility that the defect can be cured by amendment’ ” so long
as the plaintiff has shown “ ‘in what manner he can amend [the]
complaint and how that amendment will change the legal effect
of [the] pleading.’ ” (Goodman v. Kennedy (1976) 18 Cal.3d
335, 349.) Sadeghi shoulders the burden to show a reasonable
possibility the defect in the SAC can be cured by amendment; if it
can, the trial court abused its discretion in sustaining the
demurrer without leave to amend. (Dudek, supra, 33 Cal.App.5th
at pp. 163–164.)
Sadeghi has not proposed an amendment that would cure
the defects and has not provided any argument or citation to the
law. He provides one sentence on the topic referencing the
applicable standard of review. That is not enough. The burden is
on the Sadeghi to demonstrate how he can amend the SAC’s
invasion of privacy cause of action and how the proposed
amendment will change the legal effect of the pleading.
(Community Cause v. Boatwright (1981) 124 Cal.App.3d 888,
902.) In the absence of proposed new facts and failure to provide
adequate legal authority and analysis to support his contention,
it is forfeited. (Ewald v. Nationstar Mortgage, LLC (2017)
13 Cal.App.5th 947, 948; Nielsen v. Gibson (2009)
178 Cal.App.4th 318, 324.)
30
DISPOSITION
The judgment of dismissal as to the battery and IIED
causes of action is reversed. The order sustaining the demurrer
as to the invasion of privacy cause of action is affirmed.
Appellant shall recover costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, P. J.
We concur:
WILEY, J.
VIRAMONTES, J.
31