Judge: Anne Richardson, Case: 21STCV36861, Date: 2023-03-01 Tentative Ruling
Case Number: 21STCV36861 Hearing Date: March 1, 2023 Dept: 40
[TENTATIVE] RULING RE: DEFENDANT'S DEMURRER
Shaun Welch (“Plaintiff”) filed a complaint against his former
employer Marwest, LLC (“Defendant”) on October 6, 2021. On June 15, 2022,
Plaintiff filed his First Amended Complaint (“FAC”) alleging 10 different
causes of action:
1. Retaliation in violation of FEHA;
2. Failure to prevent retaliation in
violation of FEHA;
3. Disability discrimination in
violation of FEHA;
4. Failure to Accommodate in violation
of FEHA;
5. Failure to engage in the
interactive process in violation of FEHA;
6. Race discrimination in violation of
FEHA;
7. Failure to prevent race
discrimination in violation of FEHA;
8. Harassment in violation of FEHA;
9. Constructive discharge in violation
of public policy;
10. Whistleblower retaliation in
violation of labor code § 1102.5(c)
Defendant now brings this Demurrer to the third, fourth, fifth,
sixth, seventh, eight, and tenth causes of action. (See Re-filed Demurrer to
FAC, hereinafter “Re-filed Demurrer”).
After review, the Court OVERRULES Defendant’s demurrer for
the reasons below.
Plaintiff is a 42-year-old African
American male who was hired by Defendant in October 2018 as a driver, where he
executed duties, such as delivering supplies, and lifting and carrying heavy
items. Plaintiff was supervised by his manager, Vladimir Medina. Medina
determined Plaintiff’s work schedule, assigned duties, and determined whether
Plaintiff could take leave or receive workplace accommodations.
Plaintiff alleges that he
experienced harassment and retaliation based on his race during his employment with
Defendant. Plaintiff identifies several examples of harassment including longer
shifts, required overtime, supervisor Medina requiring Plaintiff to unload
heavy objects other coworkers neglected to unload, and the use of derogatory
and demeaning language including the “N-word”. (FAC, ¶ 21-22).
Plaintiff also alleges that in
January of 2021 when Plaintiff informed supervisor Medina of work-related
stress, anxiety, and injury to his back, he submitted a doctor’s note to the
Human Resources Department requesting leave, the leave was denied. (FAC, ¶ 31).
Plaintiff took leave regardless. (FAC, ¶ 32).
Because of the adverse treatment,
Plaintiff felt that “he could no longer remain employed” by Marwest and
resigned in May 2021. (FAC, ¶ 36).
Plaintiff subsequently brought the
instant action against Defendant on October 6, 2021. On June 15, 2022 Plaintiff
filed a FAC which is the controlling complaint here. On October 31, 2022
Defendant filed their Re-filed Demurrer, after their initial demurrer was
rendered moot by the June 15, 2022 FAC. Plaintiff responded with Opposition
Papers on December 19, 2022. Defended file Reply Papers on December 23, 2022.
Judicial
Notice –
Pursuant
to Evidence Code section 452, the Court denies Defendant’s request that it take
judicial notice of the following:
·
Excerpts from the April 28, 2022 deposition
of Plaintiff Shaun Welch
·
Requests for Admission to Plaintiff Shaun
Welch
·
Excerpts
of Plaintiff’s workers compensation deposition enclosed in Exhibit A of Plaintiff’s
Opposition to Defendant’s Demurrer to the First Amended Complaint.
·
Excerpts
of Plaintiff’s civil deposition enclosed in Exhibits B, C, and F of Plaintiff’s
Opposition to Defendant’s Demurrer to the First Amended Complaint.
·
Plaintiff’s
responses to Defendant’s Request for Admissions, Set One and Set Two enclosed,
respectively, in Exhibits D and E, of the Plaintiff’s Opposition to Defendant’s
Demurrer to the First Amended Complaint
These do
not constitute official acts of the legislative, executive, or judicial
departments of the state or federal government (subd. c), court records (subd.
d), nor “facts and propositions that are not reasonably subject to dispute” (subd.
h).
Indeed, defendant
appears to be attempting to modify this demurrer into a motion for summary
judgment by attaching and citing to discovery in this case, which,
almost by definition, constitutes matters very much subject to dispute. This, the court cannot do.
Analysis
Meet
and Confer – UNSATISFIED
Legal
Standard of the Meet and Confer Requirement
“Before filing a 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.” (CCP § 430.41(a); see also CCP § 435.5 (imposing similar
requirements for a motion to strike).)
Application
of the Meet and Confer Requirement
Here, Defendant filed an initial Demurrer to
the original complaint, but that Demurrer was rendered moot when the Plaintiff
filed his FAC on June 15, 2022 (See FAC). Defendant was never served with the FAC;
however, Defendant did receive a courtesy copy via email on June 28, 2022 (See
Declaration of Geoffrey Lee on Meet-And-Confer Efforts, hereinafter, “Meet and
Confer Dec.”, ¶ 7). Defendant then sent Plaintiff a meet-and-confer letter on
July 19, 2022 regarding the FAC.
The meet and confer requirement is
unsatisfied because the Meet and Confer Dec. was signed on July 19, 2022, the
same day a meet and confer letter was sent to Plaintiff. (See CCP § 430.41(a)(2)
requiring that the parties meet and confer at least five days before the
responsive pleading is due). The Meet and Confer Dec. does not detail
any subsequent efforts, and on its face shows that there was no time for
Plaintiff to respond, given that the letter was sent the same day the Meet and
Confer Dec. was signed. No additional documents have been filed with this Court
detailing further efforts to meet and confer by the demurring party.
Conclusion
on the Meet and Confer Requirement
Therefore, the meet and confer
requirement pursuant to CCP § 430.41(a) and CCP § 435.5 was not
properly satisfied. However, per CCP § 430.41(a)(4) “A determination by the
court that the meet and confer process was insufficient shall not be grounds to
overrule or sustain a demurrer.”
Demurrer
-
Legal
Standard of a Demurrer
“[A] demurrer tests the legal
sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer
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. (See Donabedian v. Mercury
Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court
may not consider declarations, matters not subject to judicial notice, or
documents not accepted for the truth of their contents].) For purposes of ruling
on a demurrer, all facts pleaded in a complaint are assumed to be true, but the
reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hosp. Dist. (1992) 2
Cal.4th 962, 967.)
Application
on the Demurrer -
A. Plaintiff articulated a legal
disability under California law as to the third, fourth, and fifth causes of
action –
The parties’ principal contentions focus on whether or not
Plaintiff actually suffered or had a disability. Defendant rest part of their
demurrer on Plaintiff’s supposed failure to demonstrate their disability.
Defendant notes that Plaintiff acknowledged he was not disabled during his time
working for Defendant, specifically pointing to deposition testimony where
Plaintiff was directly asked: “Were you ever disabled during the time you
worked for [Defendant] Wrist?”. Plaintiff responded “No.” (Reply Papers,
3:17-20).
Whether Defendant has a basis for a motion for summary judgment,
this is completely improper in the context of a demurrer. The Court cannot take into consideration
anything other than the pleadings and matters that are not subject to
reasonable dispute. (Donabedian, supra.)
Here, Plaintiff states that he suffered from physical “injuries to
his back and knees”. (See FAC, ¶ 25). Then, in April of 2021, Plaintiff
submitted a doctor’s note to Defendant’s human resources department and
requested leave because of his injuries. (See FAC, ¶ 29) The cause of the
injuries was due to prolonged continuous activities Plaintiff was compelled to
perform as part of his employment duties. Defendant denied Plaintiff’s leave
request. (See FAC, ¶ 31). However, due to severe back pain Plaintiff took a one
month leave.
Defendant argues that a month-long back injury is too short in
duration to constitute a disability. (See Reply Papers, 2:2-5). However,
California law does not specify a minimum time for an injury to constitute a
disability. California law simply contends that the disability affects one of
the enumerated body systems, and that it limits a major life activity. A severe
back injury would certainly constitute as part of the musculoskeletal system
and work certainly constitutes a major life activity.
Therefore, under California law, the Plaintiff has sufficiently
alleged that he suffered from a disability. This is not the time to argue the
evidence.
B. Racial discrimination was properly
alleged as to the sixth, seventh, and eighth causes of action–
The Fair Employment and Housing
Act (FEHA) dictates that “It is an unlawful employment practice…for an employer
because of race…to refuse to hire or employ the person or to refuse to select
the person for a training program leading to employment, or to bar or to
discharge the person from employment or from a training program leading to
employment, or to discriminate against the person in compensation or in terms,
conditions, or privileges of employment.” (Gov. Code § 12940(a)).
Here, Plaintiff articulates
several examples that violate FEHA: being assigned longer shifts, required overtime, requiring Plaintiff to unload
heavy objects other coworkers neglected to unload, and the use of derogatory
and demeaning language including the “N-word”, and that “African Americans are
lazy”. (See FAC, ¶ 21-22). These allegations alone are more than sufficient to
show discrimination on the basis of race. Although Defendant demurs on all
causes of action involving race discrimination, the Reply Papers are noticeably
silent on this point.
C. Constructive
discharge was properly alleged as to the ninth and tenth cause of action –
“In order to establish a
constructive discharge, an employee must plead and prove . . . that the
employer either intentionally created or knowingly permitted working conditions
that were so intolerable or aggravated at the time of the employee’s
resignation that a reasonable employer would realize that a reasonable person
in the employee’s position would be compelled to resign.” (Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1251.) As a
general matter, there must be a “continuous pattern” of “unusually aggravated”
“adverse working conditions,” as “isolated acts of misconduct are insufficient
to support a constructive discharge claim.” (Id. at p. 1247, brackets and quotation marks omitted.)
Here, Defendant properly argues
that the conditions that are deemed intolerable must exist at the time of the
employee’s resignation. (Reply Papers, 4:6-18). However, Defendant then continues
that if the intolerable conditions were not present at the exact moment of
resignation, that constructive discharge is no longer applicable. Ibid. To begin with, Defendant cites a portion of Turner
which relates to a dissenting opinion, not the majority opinion. (Reply at p. 4 lines 8-10, citing to Turner,
7 Cal.4th at p. 1264 (Kennard J., dissenting).)
What Turner’s majority opinion actually held was that the plaintiff’s
claim in that case suffered from two fatal flaws, one of which was that he “did
not establish the required nexus between his whistle-blowing activities . . .
and negative reviews of his performance four years later.” (Turner, supra, 7 Cal.4th at p. 1253
(emphasis added.) Nothing in Turner suggests
anything close to Defendant’s assertion that the “timing must be simultaneous.” (Reply at 4 lines 10-11.)
If there was some indication that
the intolerable conditions had ceased before Plaintiff’s resignation, it may
weaken Plaintiff’s position on this cause of action, however, no indication of a
ceasing of the intolerable conditions is present. Plaintiff need not be
subjected to intolerable conditions at the moment of, or even the days leading
up to, the resignation as Defendant contends. Turner v. Anheuser-Busch, Inc., supra,
held that a “continuous
pattern” of “unusually aggravated” working conditions created by the employer
are sufficient, and that is what Plaintiff has alleged here.
D. Whistleblower retaliation in
violation of labor code § 1102.5(c) was properly alleged as to the tenth cause
of action -
“An employer, or any person acting
on behalf of the employer, shall not retaliate against an employee for refusing
to participate in an activity that would result in a violation of state or
federal statute, or a violation of or noncompliance with a local, state, or
federal rule or regulation.” (Labor Code § 1102.5(c)).
Here, Plaintiff has articulated a
sufficient cause of action. Plaintiff alleges that Defendant assigned him to
drive trucks that were loaded to weights greater than those allowed applicable
by California laws governing commercial vehicle weights on public roads. When
Plaintiff complained about the overweight trucks, he was assigned to longer
shifts, overtime work, and working as late as 10:30pm (See FAC, ¶ 137-138).
This falls squarely within the scope of the unlawful actions the applicable
labor code intends to prohibit.
Therefore, the Defendant’s Re-filed Demurrer to the third, fourth,
fifth, sixth, seventh, eight, and tenth causes of action in Plaintiff’s First
Amended Complaint is OVERRULED.
The Answer shall be filed and served within 20 days.