Judge: Andrew E. Cooper, Case: 24CHCV03576, Date: 2025-04-21 Tentative Ruling

Case Number: 24CHCV03576    Hearing Date: April 21, 2025    Dept: F51

LOS ANGELES SUPERIOR COURT

NORTH VALLEY DISTRICT

DEPARTMENT F-51

DEMURRER

Demurrer filed: 12/24/24

MOVING PARTY: Defendants California Governor’s Office of Emergency Services; and State of California (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiff Rebecca Weber (“Plaintiff”)

NOTICE: NOT OK¿(State of California is a named (not served) Defendant but now demurs against the complaint; misstates the motion as one for judgment on the pleadings)

RELIEF REQUESTED: Moving Defendants demur against the sixth and seventh causes of action in Plaintiff’s complaint.

TENTATIVE RULING: The demurrer is overruled. Moving Defendants to file their answer to Plaintiff’s complaint within 20 days.

BACKGROUND

This is an employment action in which Plaintiff alleges that nonmoving Defendant ”Ryan Buras, a former employee of Cal OES, subjected Rebecca Weber to a prolonged campaign of sex and gender-based discrimination, harassment, and retaliation.” (Compl. 2:20–21.) Plaintiff alleges that she “had been working from home successfully for years, which allowed her to care for her disabled partner. But Buras, as part of his retaliation, arbitrarily revoked her work-from-home status, which made it much more difficult for Weber to care for her partner. Buras did so because Weber rejected his sexual overtures and pushed back against his plans to illegally distribute State funds.” (Id. at 2:23–27.) Plaintiff further alleges that Moving Defendants “allowed Buras, a governor appointee, to wield unchecked power and supported his retaliation campaigns against those that objected to his unlawful sexual harassment and unlawful retaliation for reporting fraud, waste, and abuse.” (Id. at 3:12–14.)

On 10/3/24, Plaintiff filed her complaint, alleging against Defendants the following causes of action: (1) Hostile Work Environment Based on Sex; (2) Discrimination Based on Sex and/or Gender; (3) Failure to Prevent Harassment and Discrimination Based on Sex and/or Gender; (4) Retaliation; (5) Discrimination Against Someone Associated with a Disabled Person; (6) Failure to Accommodate Disability; (7) Failure to Engage in the Interactive Process; (8) Retaliation; and (9) Violation of/Interference with the California Family Rights Act.

On 12/24/24, Moving Defendants filed the instant demurrer. On 4/8/25, Plaintiff filed her opposition. On 4/14/25, Moving Defendants filed their reply.

ANALYSIS

As a general matter, a party may respond to a pleading against it by demurrer on the basis of any single or combination of eight enumerated grounds, including that the pleading “does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).) In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice.¿(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)

“A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Ibid.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Here, Moving Defendants demur to Plaintiff’s sixth and seventh causes of action on the basis that Plaintiff fails to allege facts sufficient to constitute those causes of action.

A.    Meet-and-Confer

Before filing its demurrer, “the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc. § 430.41, subd. (a).) The demurring party must file and serve a meet and confer declaration stating either: “(A) The means by which the demurring party met and conferred with the party who filed the pleading subject to demurrer, and that the parties did not reach an agreement resolving the objections raised in the demurrer;” or “(B) That the party who filed the pleading subject to demurrer failed to respond to the meet and confer request of the demurring party or otherwise failed to meet and confer in good faith.” (Id. at subd. (a)(3).)

Here, Moving Defendants’ counsel declares that he met and conferred with Plaintiff’s counsel prior to filing the instant demurrer, but the parties were unable to come to an informal resolution. (Decl. of Michael Purcell ¶ 2a.) Accordingly, the Court finds that counsel has satisfied the preliminary meet and confer requirements under Code of Civil Procedure section 430.41, subdivision (a).

B.     Failure to Accommodate Disability; Failure to Engage in the Interactive Process

Plaintiff’s sixth cause of action alleges Failure to Accommodate Disability against Moving Defendants. Under Government Code, section 12940, it is an unlawful employment practice “to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee” unless the employer demonstrates doing so would impose an undue hardship. (Gov. Code § 12940, subd. (m).) “The essential elements of a failure to accommodate claim are: (1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff's disability.” (Wilson v. County of Orange (2009) 169 Cal.App.4th 1185, 1192.)

Plaintiff’s seventh cause of action alleges Failure to Engage in the Interactive Process against Moving Defendants. “FEHA requires an informal process with the employee to attempt to identify reasonable accommodations, not necessarily ritualized discussions.” (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 379.) “Once initiated, the employer has a continuous obligation to engage in the interactive process in good faith. “Both employer and employee have the obligation to keep communications open’ and neither has a right to obstruct the process. Each party must participate in good faith, undertake reasonable efforts to communicate its concerns, and make available to the other information which is available, or more accessible, to one party. Liability hinges on the objective circumstances surrounding the parties’ breakdown in communication, and responsibility for the breakdown lies with the party who fails to participate in good faith.” (Swanson v. Morongo Uni¿ed School Dist. (2014) 232 Cal.App.4th 954, 971–972 [internal citations and quotations omitted].)

Here, Plaintiff alleges that Moving Defendants “failed to reasonably accommodate the fact that Weber’s long-term partner suffered from a serious kidney disease. The State and Cal OES could have easily accommodated Weber by allowing her to work from home, as she had done successfully for many years. Because they failed to do so, Weber was forced to take on a punishing and unnecessary commute.” (Compl. ¶ 102.) “Weber notified DEFENDANTS of her need for a reasonable accommodation for her partner’s disability (working from home). However, DEFENDANTS failed to engage in a good-faith interactive process. Instead, they stated—in conclusory fashion—that Weber would need to regularly come into the office, even though she had successfully worked remotely for many years in the past.” (Id. at ¶ 106.)

Moving Defendants argue that “Plaintiff’s Sixth and Seventh Cause of Action both fail to state a cause of action on which relief may be granted because Plaintiff does not allege that she herself has a disability. Instead, she alleges that her partner suffered from a disability and CalOES failed to accommodate Plaintiff for accommodation requests related to her partner’s disability.” (Dem. 2:3–6.) “Plaintiff’s failure to accommodate claim fails because Plaintiff cannot establish that CalOES knew she had a disability; in fact, Plaintiff does not claim that she ever requested an accommodation for herself. Instead, Plaintiff’s accommodation was to care for her disabled partner, which is not a cognizable disability under FEHA.” (Id. at 3:15–19.) “As with her claim for failure to accommodate, Plaintiff’s claim for failure to engage in the interactive process also fails because Plaintiff does not allege that she requested an accommodation related to her own disability.” (Id. at 3:26–28.)

In opposition, Plaintiff argues that “California’s disability-protection statutes apply not only to disabled persons themselves, but also to those who are ‘associated with’ a disabled person.” (Pl.’s Opp. 3:25–27, citing Gov. Code §12926, subd. (o); Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036 [“Accordingly, when FEHA forbids discrimination based on a disability, it also forbids discrimination based on a person’s association with another who has a disability.”].)

In Castro-Ramirez, the Court of Appeal suggested that Government Code section 12940, subdivision (m), when read in conjunction with Government Code section 12926, subdivision (o), may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person. In doing so, the Court of Appeal did not actually hold that employers have such a duty to provide reasonable accommodation, and specifically stated that “the accommodation issue is not settled and that it appears significantly intertwined with the statutory prohibition against disability discrimination.” (Id. at 1038–1039.)

Government Code 12940, subdivisions (m) and (n), do not expressly refer to persons other than the applicant or employee. However, the Court does not read these subdivisions “in isolation, instead [the Court] reads parts of a statutory scheme together and construe them in a manner that gives effect to each. [Citation]” (Id. at 1038.) Under Government Code section 12926, subdivision (o), “physical disability” includes a perception…that the person is associated with a person who has, or is perceived to have” a physical disability. (Gov. Code §12926, subd. (o).) “In other words, association with a physically disabled person appears to be itself a disability under FEHA. Like the many other definitions set forth in section 12926, this definition of a physical disability applies ‘in connection with unlawful practices [under FEHA], unless a different meaning clearly appears from the context.’” (Castro-Ramirez, 2 Cal.App.5th at 1038.) Accordingly, when FEHA “requires employers to reasonably accommodate the ‘known physical or mental disability of an applicant or employee’” and engage in a timely, good faith, interactive process to determine effective reasonable accommodations, “read in conjunction with other relevant provisions, [subdivisions (m) and (n)] may reasonably be interpreted to require accommodation based on the employee’s association with a physically disabled person.” (Id. at 1038–1039; See also Gov. Code § 12940, subds. (m) and (n).)

Based on the foregoing, the Court declines to determine, on demurrer, that Plaintiff cannot, as a matter of law, assert causes of action for failure to provide reasonable accommodations and failure to engage in good faith interactive process under FEHA based on Moving Defendants’ alleged failure to accommodate her request to allow her to work from home to care for her partner, and Moving Defendants’ alleged failure to engage in the interactive process when they denied her request. Accordingly, the Court overrules Moving Defendants’ demurrer against Plaintiff’s sixth and seventh causes of action.

CONCLUSION 

The demurrer is overruled. Moving Defendants to file their answer to Plaintiff’s complaint within 20 days.