Judge: Alison Mackenzie, Case: 23STCV05377, Date: 2023-11-06 Tentative Ruling
Case Number: 23STCV05377 Hearing Date: November 6, 2023 Dept: 55
The demurrer is overruled.
The motion to strike is denied.
Twenty days to answer.
Plaintiff Hector Casimiro Bojorquez Solares (“Plaintiff”)
filed a Complaint alleging that Defendants Right Size Plumbing & Drain Co.,
Inc. and Tip Top Drain Pro wrongfully terminated Plaintiff’s employment as
manual laborer, based on the pretext of his lacking transportation, after he
complained about wage-and-hour violations, he became temporarily and partially
disabled by a work injury to his finger, he requested medical accommodations, he
took disability leave, he had medical restrictions, and he filed a worker’s
compensation claim.
Defendant Right Size Plumbing & Drain Co., Inc. dba
Tip Top Drain Pro (“Defendant”) demurs to the first, second, fifth, sixth,
seventh, eighth and ninth causes of action in Plaintiff’s Complaint. Defendant
separately moves to strike: (1) Plaintiff’s request for punitive damages, an
accounting, an injunction, declaratory relief, and restitution and disgorgement;
(2) allegations about Defendant’s alleged failure to provide Plaintiff with a
reasonable accommodation, and (3) Tip Top Drain Pro as a defendant. Plaintiff
opposes the motions.
Demurrer
First Cause of Action- Harassment
Defendant argues that Plaintiff’s harassment
allegations are conclusory and insufficient to state a claim. (Mot. 5:10-11.) The
Court disagrees. “[I]n some cases the hostile message that constitutes …
harassment is conveyed through official employment actions, and therefore
evidence that would otherwise be associated with a discrimination claim can
form the basis of a harassment claim.” Roby
v. McKesson Corp. (2009) 47 Cal.4th 686, 708. Official employment actions can evidence a
harassment claim where the action communicates a hostile or offensive message
to the employee. Pollock v. Tri-Modal
Distribution Services, Inc. (2021) 11 Cal.5th 918, 932-33.
Plaintiff alleges that Defendant’s conduct included
failing to accommodate his injury (Complaint, ¶ 24), which led his condition to
worsen such that he had to take time off for physical therapy. (Id., ¶
26.) And then after Defendant could return to work, Plaintiff terminated his
position. (Id., ¶ 28.) These allegations, which are incorporated into
his harassment claim (Id., ¶ 33), are coupled with Plaintiff’s
allegation that he was “regularly harassed by Defendants’ employees … [and the]
constant, daily harassment was so despicable, severe and pervasive as to
materially alter Plaintiff’s work environment, including but not limited to
forcing Plaintiff to request to be demoted in order to precent [sic] himself
from being subjected to further harassment.” (Id. ¶ 36.) Because Plaintiff’s
claim can rely on such alleged conduct by Defendant as the basis for harassment,
the Complaint adequately alleges a harassment claim.
Second Cause of Action- Discrimination
Defendant argues that Plaintiff’s discrimination fails
because he was cleared to work in May 2022 and thus no alleged disability
existed at the time of his termination in June 2022. (Mot. 5:26-6:1.) The law does
not support this argument. The allegedly short period of time, from being
cleared to work without restrictions, to employment termination, infers
employers’ intent to discriminate related to the disability (e.g., Complaint, ¶
28 (“However, just a few weeks later, on or about June 5, 2022, Plaintiff was
terminated by Defendants under the guise of not having his own means of
transportation.”)).
The element of causation between the disability and
the adverse employment action may be based upon inferences from circumstantial
evidence, including employer’s knowledge of the employee’s protected activity,
and the time between the protected act and the employment decision. Morgan v. Regents of Univ. of Cal.
(2000) 88 Cal.App.4th 52, 69-70. Employment
termination only a few months after employees’ protected activities can
circumstantially evidence causation as to retaliation claims. Flait v. No. Amer. Watch Corp. (1992)
3 Cal. App. 4th 467, 478. “Although
‘temporal proximity alone is not sufficient to raise a triable issue as to
pretext,’ ‘temporal proximity, together with the other evidence, may be
sufficient to establish pretext.’” Diego
v. Pilgrim United Church of Christ (2014) 231 Cal. App. 4th 913, 932. To infer retaliation based upon timing,
plaintiffs must show a relatively short time passed between the protected
activity and the adverse employment action.
Loggins v. Kaiser Permanente Intern. (2007) 151 Cal.App.4th 1102, 1110 n. 6 (nine
months too long to infer retaliation). Plaintiff alleges that he had to take
time off work to attend physical therapy after Defendant failed to provide him
with accommodations, a protected activity. (Complaint, ¶¶ 24, 26.) After
receiving treatment for a few months, Plaintiff returned to work. (Id., ¶¶
26.27.) The fact that Plaintiff had been cleared to return to work just weeks
before getting terminated does not, therefore, eliminate his ability to sue for
discrimination based on his medical condition or disability.
Fifth Cause of Action -Failure to Take All
Steps Necessary to Stop Discrimination and Harassment
Defendant argues that Plaintiff’s fifth cause of
action fails because it is based on his harassment and discrimination claims. (Mot.
6:12.) Because of those underlying claims, the claim for failure to prevent
discrimination does not fail either. See
Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 208 (courts have required actual discrimination
or harassment in order to support claims for failure to prevent discrimination
or harassment); Carter v. California
Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925 n.4 (“courts have
required a finding of actual discrimination or harassment under FEHA before a
plaintiff may prevail under section 12940, subdivision (k).”).
Sixth Cause of Action-Retaliation
Defendant contends that Plaintiff does not allege a
causal link between his disability to his June 2022 termination because he had
no work restrictions requiring any accommodation at the time of his
termination. (Mot. 6:22-7:1.) But as described above, Plaintiff has alleged a
close temporal proximity between his protected activity of receiving treatment
for his finger injury and his termination. He therefore has adequately pled a retaliation
claim.
Seventh Cause of Action -Whistleblower
Retaliation in Violation of Labor Code §1102.5
Defendant argues that Plaintiff does not adequately
allege to whom he directed his complaint about wage violations, but the
pleading sufficiently alleges reporting wage-and-hour violations to someone who
then would sometimes, “provide Plaintiff with the remainder of his wages…,” and employer retaliating because of the
complaints (e.g., Complaint, ¶¶ 15,
.31) See generally Lawson v. PPG
Architectural Finishes, Inc. (2022) 12 Cal. 5th 703, 718 (citing Lab. C. § 1102.6).
Eighth Cause of Action – Wrongful Termination
in Violation of Public Policy
Defendant contends this claim must fail because
Plaintiff’s FEHA and Labor Code violation claims fail. (Mot. 9:5-6.) For the
reasons stated above, those underlying claims do not fail and neither does
Plaintiff’s eighth cause of action.
Ninth Cause of Action - Intentional
Infliction of Emotional Distress
Defendant contends that Plaintiff makes no allegation
supporting a claim for intentional infliction of emotional distress. (Mot.
9:13-14.) But employment actions can involve outrageous conduct, including
based on claims of harassment and discrimination. Murray v. Oceanside Unif. Sch. Dist.
(2000) 79 Cal.App.4th 1338, 1362-63 (harassment based upon sexual
orientation); Fisher v. San Pedro Peninsula Hosp. (1989) 214 Cal.App.3d
590, 618 (properly pled sexual harassment); Robinson v. Hewlett-Packard Corp.
(1986) 183 Cal. App. 3d 1108, 1127-30 (race discrimination can be outrageous), disapproved on other grounds in Rojo
v. Kliger (1990) 52 Cal. 3d 65, 81-82; Rulon-Miller v. I.B.M. Corp. (1984) 162 Cal.App.3d 241,
255 (employer outrageously stated to employee that she could not see her
romantic friend or she would face employment termination), overruled on other grounds by Guz
v. Bechtel Nat’l, Inc. (2000) 24 Cal.4th 317, 351; Myers v. Trendwest
Resorts, Inc. (2007) 148 Cal.App.4th 1403, 1426-27 (harassment may
constitute intentional infliction of emotional distress); Ankeny v. Lockheed Missiles and Space Co.
(1979) 88 Cal.App.3d 531, 537 (employer’s outrageous conduct not alleged due to
dearth of facts); Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 161 (“when the intentional infliction of
emotional distress claim is based on conduct that violates a fundamental public
policy….”). Plaintiff’s emotional distress claim, which incorporates all his allegations
regarding the alleged harassment and discrimination he suffered, adequately states
a claim.
Motion to Strike
Punitive Damages
Defendant seeks to strike Plaintiff’s request for
punitive damages because Plaintiff provides no facts to support such relief.
(Mot. 6:17-7:4.) The Court disagrees. Punitive damages are potentially
available in actions based on FEHA or violations of public policy. Cloud v. Casey (1999) 76 Cal.App.4th
895, 912 (jury properly found employer defendants intentionally discriminated
and consciously disregarded employee’s rights, by doing an adverse employment
action based on gender, because defendants tried to hide it with a false
explanation.); Commodore Home Systems v. Sup. Ct. (1982) 32 Cal.3d 211,
220; Wilson v. Safeway Stores, Inc. (1997) 52 Cal.App.4th 267, 273;
Bihun v. AT&T Info. Systems (1993) 13 Cal.App.4th 976, 996, overruled
on other grounds by Lakin v.
Watkins Associated Ind. (1993) 6 Cal.4th 644, 664; Roberts v. Ford Aerospace &
Communication Corp. (1990) 224 Cal.App.3d 793, 798; Weeks v. Baker &
McKenzie (1998) 63 Cal.App.4th 1128, 1158-59; Myers v. Trendwest Resorts, Inc.
(2007) 148 Cal.App.4th 1403, 1435 ("A court can award Civil Code section
3294 punitive damages in an FEHA case.").
As described above, Plaintiff adequately alleges his
underlying employment claims. Participation of the employer and managerial
agents is sufficiently alleged based upon general allegations (Complaint, ¶ 8 (“Defendants
and its agents herein willfully committed, ordered, directed, supervised,
allowed, planned, ratified, concealed, organized or otherwise participated ….”)).
Alleging that persons acted “with the permission and
consent” of all defendants including corporate defendants is sufficient to
plead corporate employer liability for punitive damages. O'Hara v. Western
Seven Trees Corp. (1977) 75 Cal. App. 3d 798, 806 (“it was alleged that the
misrepresentations were made by persons who acted ‘with the permission and
consent’ of all the defendants. For the purpose of meeting a general demurrer,
this was a sufficient allegation that the corporations had authorized their
agent’s acts; a corporation is liable for punitive damages when it authorizes
the wrongful act.”); Kisesky v. Carpenters’ Trust (1983) 144 Cal.App.3d
222, 235 (allegations of agents acting in scope of employment with employer’s
permission and consent were sufficient).
See also generally Scannell v. County of Riverside (1984)
152 Cal. App. 3d 596, 614 (insufficiency where a complete failure to plead acts
done with the knowledge or under express direction or ratification of officer,
director or managing agent); United W. Medical Ctrs. v. Sup. Ct. (1996)
42 Cal. App. 4th 500, 505 n. 2 (dicta re sufficiency being questionable where a
complete failure to allege authorization, ratification, or conduct by
managerial agent).
Injunctive Relief, Accounting, Declaratory
Relief, Restitution and Disgorgement
Defendant contends that the other items in Plaintiff’s
prayer for relief should be stricken because they are not supported by the
causes of action. But injunctive relief need not be with a cause of action and
instead can be attached to other underlying claims. See, e.g., Marlin v. Aimco Venezia,
LLC (2d Dist. 2007) 154
Cal.App.4th 154, 162 (“An injunction is a remedy, not a cause of action.”);
Shamsian v. Atlantic Richfield Co. (2d Dist. 2003) 107 Cal. App. 4th 967, 984-85 (“Correctly, the
respondents state that a request for injunctive relief is not a cause of
action…. Therefore, we cannot let this ‘cause of action’ stand. However, … on
remand the trial court shall permit the appellants to amend their … cause of
action to include their request for injunctive relief.”); City of S. Pasadena v. Department of
Transp. (1994) 29 Cal. App. 4th 1280, 1293 (“Injunctive relief is a remedy,
not a cause of action.”); Shell Oil
Co. v. Richter (1942) 52 Cal. App. 2d 164, 168 (“Injunctive relief is a
remedy and not, in itself, a cause of action, and a cause of action must exist
before injunctive relief may be granted.”).
The prayer describes procedures that could naturally
follow from the alleged causes of action, like determining the amount of unpaid
earnings, such that a Cause of Action for Accounting is not needed in
support. See, e.g., Janis v.
Cal. State Lottery Com. (1998) 68
Cal.App.4th 824, 833-34 (“A right to an accounting is derivative; it must be
based on other claims.”); Mamika v. Barca (1998) 68 Cal. App. 4th 487, 493
(“the critical computation required by section 203 is the calculation of a
daily wage rate, which can then be multiplied by the number of days of
nonpayment, up to 30 days.”).
“A wage is defined as ‘all amounts for labor performed
by employees of every description, whether the amount is fixed or ascertained
by the standard for time, task, piece, commission basis, or other method of
calculation.’” Schachter v.
Citigroup, Inc. (2009) 47 Cal.4th 610, 618 (quoting Lab. C. §200(a)). “[A]n employer is entitled to use the
nearest-tenth rounding policy if the rounding policy is fair and neutral on its
face and ‘it is used in such a manner that it will not result, over a period of
time, in failure to compensate the employees properly for all the time they
have actually worked.’” See's Candy
Shops, Inc. v. Sup. Ct. (2012) 210 Cal. App. 4th 889, 907. “California courts have shifted the burden of
proof to employers when inadequate records prevent employees from proving their
claims for unpaid overtime hours.” Amaral
v. Cintas Corporation No. 2 (2008) 163 Cal.App.4th 1157, 1189.
The prayer also describes procedures that could follow
from the causes of action, such as a statement of decision declaring what might
be required of the former employer, such that a Cause of Action for Declaratory
Relief is not needed in support. See
Batt v. City and County of San Francisco (2007) 155 Cal. App. 4th 65, 82
(declaratory relief is an equitable remedy, not an independent cause of
action), disapproved on other grounds by McWilliams v. City Of Long Beach
(2013) 56 Cal.4th 613, 626.
Finally, restitution and disgorgement need not be
alleged as claims. “‘[T]here is no particular form of pleading necessary to
invoke the doctrine’ of restitution.” Dinosaur
Dev. v. White (1989) 216 Cal. App. 3d 1310, 1315. Restitution and disgorgement of profits can
mean similar things. E.g., Korea
Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal. 4th 1134.
Sham Pleading
Defendant contends the allegations about its
accommodation of Plaintiff’s disability are contradictory because at points
Plaintiff alleges Defendant failed to provide any accommodation and at other
point alleges Defendant did not timely provide accommodations. The allegations
of the two Defendants’ failures to provide Plaintiff with an accommodation are
not necessarily contradictory, including because alleging no reasonable
accommodation involves a flexible concept as to what would suffice, and
alleging there was not any accommodation could be true for a period of time (Complaint,
¶¶ 24). See Scotch v. Art Institute of
California-Orange County, Inc. (2009) 173 Cal.App.4th 986, 994 (“Reasonable
accommodation” means “‘a modification or adjustment to the workplace that
enables the employee to perform the essential functions of the job held or
desired.’”); Nadaf-Rahrov v. Neiman
Marcus Group, Inc. (2008) 166 Cal.App.4th 952, 975-76 (reasonable
accommodation under FEHA includes adjusting the workplace to enable employees
to perform essential functions of held or desired jobs); Hanson v. Lucky Stores (1999) 74 Cal.
App. 4th 215, 228 n.11 (“reasonableness of an accommodation is generally a
factual question….”).
“Inconsistencies between alternative counts cannot be
attacked by demurrer, since each count stands on its own allegations,
unaffected by those contained in other counts.”
Penziner v. West American Finance Co. (1933) 133 Cal. App. 578,
582. See also Berman v. Bromberg
(1997) 56 Cal.App.4th 936, 946 (perceiving no inconsistency or sham
pleading).
Doing Business As
The Court denies Defendant’s request for judicial
notice of a Fictitious Business Name Statements filed by Right Size Plumbing
and Drain Co., Inc. indicating that it is the registered owner of and will be
doing business as “Tip -Top Drain Pro’s.”
Materials prepared by private parties that are on file
with governmental agencies, such as the Secretary of State, are not official
records of which judicial notice may be taken.
People v. Thacker (1985) 175 Cal.App.3d 594, 598-99; Stevens
v. Sup. Ct. (1999) 75 Cal.App.4th 594, 608.
Further, assuming that Defendant is doing business as
the other, the other is properly included in the case caption as a DBA and
unknown business (Complaint, ¶ 1).
Naming and serving parties under their fictitious
business name is proper procedure. Pinkerton's,
Inc. v. Sup. Ct. (1996) 49 Cal. App. 4th 1342, 1349. “Use of a fictitious business name does not
create a separate legal entity.” Pinkerton's,
Inc. v. Sup. Ct. (1996) 49 Cal. App. 4th 1342, 1348. “Doing business as” or “d/b/a” is merely
descriptive of a person or corporation doing business under another name and
does not create a separate entity. Providence
Washington Ins. Co. v. Valley Forge Ins. Co. (1996) 42 Cal.App.4th 1194,
1200.
Conclusion
The Court overrules the demurrer and denies the motion
to strike. Defendant to file an answer within 20 days.