Judge: Anne Richardson, Case: 21STCV13040, Date: 2023-07-24 Tentative Ruling

Case Number: 21STCV13040    Hearing Date: July 24, 2023    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

Background

Plaintiff David Allen sues Defendants Pacific Seismic Products, Inc., Giovanny Martinez, and Does 1 through 20 pursuant to a June 14, 2023 Second Amended Complaint (SAC) alleging (1) FEHA Discrimination, (2) FEHA Harassment, (3) FEHA Retaliation, (4) FEHA Failure to Prevent Discrimination, Harassment, and Retaliation, (5) FEHA Failure to Provide Reasonable Accommodations, (6) FEHA Failure to Engage in the Interactive Process, (7) Violation of California Family Rights Act, (8) Denial of and Discrimination Based Upon the Use of Sick Leave, (9) Retaliation in Violation of Labor Code § 6310, (10) Declaratory Judgment, (11) Wrongful Termination in Violation of Public Policy, (12) Retaliation for Disclosing Violations of Law under the Labor Code, and (13) Unfair Competition in violation of the Business and Professions Code.

The claims arise from allegations that, in his employment with Defendants, among other things, Plaintiff Allen was subjected to (1) workplace discrimination and harassment based on age, (2) discrimination and harassment related to Plaintiff Allen’s need for medical and family leave for leg injuries, time off to care for his spouse, and a severed right index finger damaged in the workplace, and (3) retaliation for reporting unsafe working conditions and requesting medical leave.

On May 5, 2023, Defendant Seismic Products, Inc. demurred to the SAC’s ninth cause of action for Retaliation in Violation of Labor Code § 6310. (The Court notes that while the SAC was not filed until June 14, 2023, Defendant Seismic Products must have been in receipt of the same based on its demurrer to the SAC specifically.)

On July 11, 2023, Plaintiff Allen opposed the demurrer.

On July 17, 2023, Defendant Seismic Products replied to the opposition.

The demurrer is now before the Court.

Demurrer

Demurrer Sufficiency Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).) This device can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “To survive a [general] demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) The face of the complaint includes exhibits attached to the complaint. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) If facts appearing in the exhibits contradict those alleged, the facts in the exhibits take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447, superseded by statute on other grounds as stated in White v. Cridlebaugh (2009) 178 Cal.App.4th 506, 521.)

Uncertainty Legal Standard 

A demurrer to a pleading lies where the pleading is uncertain, ambiguous, or unintelligible. (Code Civ. Proc. § 430.10, subd. (f).) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616, disapproved on other grounds in Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 46 [holding claims for unfair business practices need not be pled specifically, impliedly disapproving Khoury].) As a result, a special demurrer for uncertainty is not intended to reach failure to incorporate sufficient facts in the pleading but is directed only at uncertainty existing in the allegations already made. (People v. Taliaferro (1957) 149 Cal.App.2d 822, 825.) Where complaint is sufficient to state a cause of action and to apprise defendant of issues he is to meet, it is not properly subject to a special demurrer for uncertainty. (See ibid.; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 643 [“[a] special demurrer [for uncertainty] should be overruled where the allegations of the complaint are sufficiently clear to apprise the defendant of the issues which he is to meet”].)

Second Amended Complaint, Ninth Cause of Action, Retaliation in Violation of Labor Code § 6310: OVERRULED.

The SAC’s ninth cause of action alleges retaliation against Seismic Products pursuant to Civil Code section 6310, subdivisions (1), (2), and (4) based on allegations that “Defendants Seismic Products … retaliate[ed] against Plaintiff for complaining of unsafe working conditions and reporting a work-related injury resulting from said complaints” and “retaliated against Plaintiff and terminated his employment because he complained of unsafe working conditions and reported a work-related injury resulting from said complaints.” (SAC, ¶¶ 143-144; see SAC, ¶¶ 135-153.)

Labor Code § 6310, subsections (a)(1)-(4) provide that:

No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.

(2) Instituted or caused to be instituted any proceeding under or relating to their rights or has testified or is about to testify in the proceeding or because of the exercise by the employee on behalf of themselves, or others of any rights afforded to them.

(3) Participated in an occupational health and safety committee established pursuant to Section 6401.7.

(4) Reported a work-related fatality, injury, or illness, requested access to occupational injury or illness reports and records that are made or maintained pursuant to Subchapter 1 (commencing with Section 14000) of Chapter 1 of Division 1 of Title 8 of the California Code of Regulations, or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.), except in cases where the employee alleges they have been retaliated against because they have filed or made known their intention to file a workers’ compensation claim pursuant to Section 132a, which is under the exclusive jurisdiction of the Workers’ Compensation Appeals Board.

Defendant Seismic Products demurs to this cause of action on the ground that, for various reasons, it is uncertainly and insufficiently pleaded.

In opposition, Plaintiff Allen argues that his SAC sufficiently alleges a section 6310 violation, that Seismic Products misconstrues the law in favor of its demurrer, and that Seismic Products cites and applies the incorrect legal standard. (Opp’n, pp. 6-15.)

In reply, Defendant Seismic Products reiterates its uncertainty and sufficiency challenges, while recognizing one of the authorities cited in its demurrer was inapposite. (Reply, pp. 1-5.)

The Court finds that the claim is sufficiently pleaded.

At the very least, the SAC pleads that in January 2019, Plaintiff reported to Defendants issues with machinery that could cause injuries due to lack of guards (SAC, ¶ 38) and that nineteen months later, in August 2020, Plaintiff injured his hand and severed a finger “in the process,” (SAC, ¶ 39). Plaintiff attributed his August 2020 injuries to conditions arising from his January 2019 report of unsafe working conditions (SAC, ¶ 144), and alleged he was terminated, in part, due to reporting these unsafe working conditions (SAC, ¶ 144). While the claim could be more clearly pleaded, the ninth cause of action sufficiently alleges that Plaintiff Allen made an oral or written complaint to his employer (Seismic Products) in relation to conditions that could jeopardize employee safety and health through a danger of body parts being amputated (right index finger)—i.e., a “serious injury” under the ambit of the California Occupational Safety and Health Act of 1973 by virtue of involving an “injury … occurring in a place of employment … in which an employee suffers an amputation” (Labor Code, § 6302, subd. (h))—as a result of which, his employment was terminated.

Defendant Seismic Products’ demurrer is thus OVERRULED. 

Conclusion

Defendant Pacific Seismic Products, Inc.’s Demurrer to Second Amended Complaint is OVERRULED as to the only cause of action challenged therein, i.e., Retaliation in Violation of Labor Code § 6310.