Judge: Anne Richardson, Case: 21STCV36861, Date: 2023-03-01 Tentative Ruling

Case Number: 21STCV36861    Hearing Date: March 1, 2023    Dept: 40


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.


Background Allegations


            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.





Meet and ConferUNSATISFIED


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.


Conclusion on the Demurrer

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.