Judge: Anne Richardson, Case: 23STCV25496, Date: 2024-05-16 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 23STCV25496    Hearing Date: May 16, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

A. Pleadings

Plaintiff Patricia Maravilla sues Defendants Air Tiger Express (USA) Inc. (ATE), Matthew Tran, and Does 1 through 10 pursuant to an October 18, 2023, Complaint alleging claims of (1) Discrimination on the Basis of Age (Cal. Govt. Code § 12940(a), et seq.), (2) Harassment on the Basis of Age (Cal. Govt. Code § 12940(j), et seq.), (3) Hostile Work Environment Harassment on the Basis of Age (Cal. Govt. Code § 12900, et seq.), (4) Failure to Prevent Discrimination, Harassment, and Retaliation (Cal. Govt. Code § 12940(k), et seq.), (5) Retaliation in Violation of FEHA (Cal. Govt. Code § 12940(h), et seq.), and (6) Wrongful Termination in Violation of Public Policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167).

The claims arise from the following allegations. After 20 years of employment with ATE, Plaintiff was terminated from her employment as a result of her age. Plaintiff was also terminated as a result of filing complaints with Branch Manager Stephanie Tran regarding alleged ageist comments made by Defendant Matthew Tran—a Manager at ATE—in front of Plaintiff or other employees in the workplace, and with non-party Stephanie Hang—Branch Manager at ATE—allegedly failing to take action in response to complaints about Defendant Tran’s alleged ageist conduct. Plaintiff Maravilla was 45 years old at the time of her termination.

B. Motion Before the Court

On December 22, 2023, ATE filed a demurrer challenging the Complaint’s six causes of action.

That same day, ATE filed a motion to strike punitive damages and attorney’s fees allegations and prayers from the Complaint.

On May 3, 2024, Plaintiff Maravilla filed oppositions to ATE’s demurrer and motion to strike.

On May 9, 2024, ATE filed replied to Plaintiff Maravilla’s oppositions.

Defendant ATE’s demurrer and motion to strike are now before the Court.

II. Demurrer

A. Request for Judicial Notice

Per Plaintiff Marvilla’s request, the Court takes judicial notice of the Complaint in this action. (Opp’ns, RJN, p. 2, Ex. A; Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Legal 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).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach 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.) 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.) 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.)

C. Analysis

1. Demurrer, Complaint, First Cause of Action, Discrimination on the Basis of Age (Cal. Govt. Code § 12940(a), et seq.): OVERRULED.

a. Relevant Law

To establish a prima facie case of discrimination, a plaintiff must allege (1) that he or she was a member of a protected class, (2) that he or she was qualified for and performing competently in the position she held, (3) that he or she suffered an adverse employment action, and (4) conduct by the employer suggesting that it is more likely than not that the adverse employment action was due to a discriminatory motive. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 355.) It is sufficient to show that one of the employer’s motives was to discriminate, even if the employer had other lawful motives for the adverse employment action. (University of Texas Southwestern Medical Center v. Nassar (2013) 570 U.S. 338, 343.)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

The Complaint alleges that:

(1) Plaintiff was a member of a protected class in her employment with ATE, i.e., age over 40 (see, e.g., Complaint, ¶ 13, 27);

(2) Plaintiff was qualified for and competently performed her employment throughout her employment with ATE (see, e.g., Complaint, ¶¶ 12, 24);

(3) ATE terminated Plaintiff’s employment on March 24, 2020 (see, e.g., Complaint, ¶¶ 12, 14, 23); and

(4) Plaintiff’s termination of employment was preceded by circumstances that, taken as true for pleading purposes, could suggest ageist animus to a jury, e.g. Defendant Tran allegedly walking around the workplace yelling, “I’m going to get rid of all you old people,” Defendant Tran allegedly screaming at a different employee for being too slow to learn despite Plaintiff’s request that Tran cease this conduct, and Branch Manager Stephanie Hang allegedly failing to take any action in response to Defendant Tran’s alleged conduct, with Ms. Hang allegedly characterizing the behavior as “Matt was just venting” on at least two occasions to a third party (see, e.g., Complaint, ¶¶ 16-22).

These allegations amount to a prima facie allegation of FEHA discrimination based on age, as shown by Defendant Tran’s alleged ageist behavior and the Branch Manager’s alleged failure to act in response to Defendant Tran’s conduct, tacit ratification for pleading purposes.

Consequently, the first cause of action is sufficiently alleged.

The Court disagrees with the moving papers’ arguments as to this cause of action.

The first cause of action is not conclusorily alleged. Rather, the first cause of action is alleged sufficiently as to FEHA discrimination, as summarized above. Only ultimate facts need to be alleged in a pleading, and here, more than sufficient ultimate facts were alleged to show an ageist animus to Plaintiff’s termination. Even if some of the ageist comments alleged in the Complaint were not directed at Plaintiff, such comments are relevant to informing a jury’s determination of whether Plaintiff was terminated based on her age.

Moreover, there are clear connections alleged between Plaintiff’s age and her termination: Defendant Tran’s alleged ageist conduct; Stephanie Hang’s alleged ratification of Defendant Tran’s conduct; and Stephanie Hang’s termination of Plaintiff’s employment after Plaintiff allegedly complained to Stephanie Hang regarding Defendant Tran’s conduct. (See, e.g., Complaint, ¶¶ 16-22.)

ATE’s demurrer is thus OVERRULED as to the Complaint’s first cause of action.

2. Demurrer, Complaint, Second Cause of Action, Harassment on the Basis of Age (Cal. Govt. Code § 12940(j), et seq.): OVERRULED.

a. Relevant Law

To establish harassment under FEHA, a plaintiff must show: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to harassment; (3) the harassment complained of was based on the plaintiff’s membership in the protected group; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior. (Jones v. Dep’t of Corrections & Rehabilitation, supra, 152 Cal.App.4th at p. 1377.) Individual employees may be liable for their own acts of harassment. (See Gov. Code, § 12940, subd. (j)(3); Reno v. Baird (1998) 18 Cal.4th 640, 644-645.)

In a workplace harassment suit, the plaintiff need only “prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to make it more difficult to do the job.” (Harris v. Forklift Systems (1993) 510 U.S. 17, 26.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code., § 12923, subd. (b).) The court looks to the totality of the circumstances to determine whether there exists a hostile work environment. (Gov. Code, § 12923, subd. (c).)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

The Complaint alleges that:

(1) Plaintiff was a member of a protected class in her employment with ATE, i.e., age over 40 (see, e.g., Complaint, ¶ 13, 27);

(2) Plaintiff was subject to ageist comments in the workplace as allegedly uttered by Defendant Tran, which Plaintiff Maravilla reported to Stephanie Hang as Branch Manager, but Hang allegedly failed to take action, elsewhere describing that behavior to a different employee as Defendant Tran “just venting” (see, e.g., Complaint, ¶¶ 18-19, 21);

(3) Defendant Tran’s alleged harassment of older employees including Plaintiff was based on their age (see, e.g., Complaint, ¶ 21 [yelling “‘I’m going to get rid of all you old people’”]);

(4) Defendant Tran’s alleged ageist behavior and ATE’s alleged failure to rectify that behavior created an abusive work environment, where management refused to seriously consider Plaintiff’s complaints regarding Defendant Tran’s alleged conduct, and where Tran allegedly screamed at employees regarding their age and inability to learn as to humiliate those individuals (see, e.g., Complaint, ¶¶ 21-22); and

(5) Respondeat superior based on Defendant Tran’s alleged management position and Stephanie Hang’s alleged Branch Manager position (see, e.g., Complaint, ¶¶ 3, 5, 16).

These allegations sufficiently plead FEHA harassment/hostile work environment based on age.

Consequently, the second cause of action is sufficiently alleged.

The Court disagrees with the moving papers’ arguments as to this cause of action.

First, there are allegations that Defendant Tran made ageist comments around Plaintiff and that Plaintiff reported those comments to Branch Manager, Stephanie Hang. (See, e.g., Complaint, ¶ 21.) ATE’s argument that this allegation is “vague” stretches the reasonable argument that Plaintiff could have done more to allege the fact that she directly heard these comments when Defendant Tran was walking the floor yelling ageist comments. However, when read liberally and in context, the 21st paragraph of the Complaint alleges that “Plaintiff also worked with Tran,” followed by allegations that Tran made ageist comments on the work floor, and with “Plaintiff … [subsequently] verbally complain[ing] to [Stephanie] HANG about the [ageist] comments.” Such allegations imply Plaintiff’s presence on the floor when Defendant Tran made ageist comments, sufficiently supporting the FEHA harassment claim for pleading purposes.

Second, the conduct alleged in relation to Defendant Tran was sufficiently severe and pervasive as to alter the conditions of Plaintiff’s employment. Plaintiff pleads to have been a witness and victim to age discrimination and that management allegedly failed to take any action in response, e.g., investigation or rectification of conduct. (See, e.g., Complaint, ¶¶ 21-22.)

ATE’s demurrer is thus OVERRULED as to the Complaint’s second cause of action.

3. Demurrer, Complaint, Third Cause of Action, Hostile Work Environment Harassment on the Basis of Age (Cal. Govt. Code § 12900, et seq.): OVERRULED.

Because the second and third causes of action allege harassment, and because the demurrer’s arguments against these claims are identical (Demurrer, pp. 8-9), the Court adopts its reasoning as to the second cause of action to OVERRULE ATE’s demurrer to the Complaint’s third cause of action.

4. Demurrer, Complaint, Fourth Cause of Action, Failure to Prevent Discrimination, Harassment, and Retaliation (Cal. Govt. Code § 12940(k), et seq.): OVERRULED.

a. Relevant Law

Government Code section 12940(k) provides that it is an unlawful employment practice “[f]or an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (Gov. Code, § 12940, subd. (k).) To establish this claim, a plaintiff must establish the defendant’s legal duty of care, breach of duty, legal causation, and damages to the plaintiff. (See Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 286-287.)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

The Court adopts its above discussions relating to the first and second causes of action, as well as its below discussion regarding the fifth cause of action, to determine that the Complaint sufficient alleges (1) the duty of ATE to protect its employees from discriminatory behavior in violation of the FEHA, (2) breach of that duty through the alleged ageist conduct by Defendant Tran, subsequent inaction by management, and Plaintiff’s subsequent termination, and (3) economic and non-economic damages.

ATE’s demurrer is thus OVERRULED as to the Complaint’s fourth cause of action.

5. Demurrer, Complaint, Fifth Cause of Action, Retaliation in Violation of FEHA (Cal. Govt. Code § 12940(h), et seq.): OVERRULED.

a. Relevant Law

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action.” (Yanowitz v. L’Oreal USA Inc. (2005) 36 Cal.4th 1028, 1042 [internal citations omitted].) “A plaintiff … need only prove that a retaliatory animus was at least a substantial or motivating factor in the adverse employment decision” to prevail on her claim. (George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1492 (George).)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

The Complaint alleges:

(1) Plaintiff made at least one complaint to Branch Manager Stephanie Hang regarding Defendant Tran’s alleged ageist comments on the floor (see, e.g., Complaint, ¶ 21[“Plaintiff also verbally complained to HANG about the comments, but HANG did nothing”]);

(2) ATE terminated Plaintiff’s employment on March 24, 2020 (see, e.g., Complaint, ¶¶ 12, 14, 23); and

(3) A causal link between Plaintiff’s complaints against Defendant Tran in 2019 and her termination in March 2020 (see, e.g., Complaint, ¶¶ 22-23).

These allegations sufficiently allege FEHA retaliation based on age.

Consequently, the fifth cause of action is sufficiently alleged.

The Court disagrees with the moving papers’ arguments as to this cause of action.

First, contrary to ATE’s argument, Plaintiff has alleged facts that she made complaints to Stephanie Hang regarding Defendant Tran’s alleged ageist conduct. (See, e.g., Complaint, ¶ 21.)

Second, the Complaint sufficiently alleges a causal connection between Defendant Tran’s pattern of ageist conduct, management’s failure to correct that conduct on more than one occasion, Plaintiff’s complaint against Defendant Tran in 2019, and Plaintiff’s termination in March 2020.

Even if, as alleged in the Complaint, the COVID-19 pandemic is another reason for Plaintiff’s termination, the Court determines that the Complaint sufficiently alleges that age was a substantial and motivating factor behind Plaintiff’s termination, as shown by Defendant Tran’s alleged ongoing pattern of ageist conduct and management’s inaction in relation to that conduct. (George, supra, 179 Cal.App.4th at p. 1492.)

ATE’s demurrer is thus OVERRULED as to the Complaint’s fifth cause of action.

6. Demurrer, Complaint, Sixth Cause of Action, Wrongful Termination in Violation of Public Policy (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167): OVERRULED.

a. Relevant Law

“The elements of a claim for wrongful discharge in violation of public policy are (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

The Court adopts its above discussions relating to the first, second, and fifth causes of action to determine that the Complaint sufficiently alleges (1) an employer-employee relationship between ATE and Plaintiff Maravilla, (2) termination of Plaintiff’s employment in March 2020, (3) termination based on ageism and retaliation in violation of the FEHA, and (4) economic and non-economic damages.

ATE’s demurrer is thus OVERRULED as to the Complaint’s sixth cause of action.

III. Motion to Strike

A. Request for Judicial Notice

Per Plaintiff Marvilla’s request, the Court takes judicial notice of the Complaint in this action. (Opp’ns, RJN, p. 2, Ex. A; Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Legal Standard

The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (a) strike out any irrelevant, false, or improper matter inserted in any pleading; or (b) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc. § 436, subds. (a), (b); Stafford v. Shultz (1954) 42 Cal.2d 767, 782 [“Matter in a pleading which is not essential to the claim is surplusage; probative facts are surplusage and may be stricken out or disregarded”].)

For the purposes of a motion to strike pursuant to Sections 435 to 437 of the Code of Civil Procedure, the term “pleading” generally means a demurrer, answer, complaint, or cross-complaint, (Code Civ. Proc., § 435, subd. (a)), and an immaterial allegation or irrelevant matter in a pleading entails (1) an allegation that is not essential to the statement of a claim or defense, (2) an allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense, or (3) a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint (Code Civ. Proc., § 431.10, subds. (b)(1)-(3), (c)).

C. Analysis

1. Motion to Strike, Complaint, Punitive Damages: DENIED.

a. Relevant Law

“In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a); College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725 (College Hospital) [explaining amendments requiring “despicable” conduct for malice and oppression].)

Under the Civil Code, “[a]n employer shall not be liable for damages pursuant to subdivision (a), based upon acts of an employee of the employer, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” (Civ. Code, § 3294, subd. (b).) Moreover, “corporate employers[] […] may not be liable for punitive damages unless ‘the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice [is] on the part of an officer, director, or managing agent of the corporation.’ [Citation.]” (White v. Ultramar (1999) 21 Cal.4th 563, 566, fn. 1.) The statute was amended in 1980 to include the limitations in subdivision (b). (Ibid.)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

Here, the Court adopts its demurrer discussion to determine that Defendant Tran’s alleged ageist conduct and ATE’s alleged ratification of that conduct through alleged inaction in the face of complaints of ageism against Defendant Tran constitute malice and oppression for pleading purposes.

Moreover, the Court determines that because the Complaint sufficiently alleges that Branch Manager Stephanie Hang ratified Defendant Tran’s alleged ageist conduct, punitive damages are sufficiently alleged against ATE as a corporate entity through the conduct of its officer, director, or managing agent (Branch Manager). (See, e.g., Complaint, ¶¶ 18-19-21-22.)

2. Motion to Strike, Complaint, Attorney’s Fees: DENIED.

a. Relevant Law

Attorney fees are only recoverable when authorized by contract, statute or law. (Code Civ. Proc. 1033.5, subd. (a)(10).) Otherwise, regardless of who prevails in litigation, each party must bear his or her own attorneys’ fees—a proposition known as the American Rule. (Alyeska Pipeline Service Co. v. Wilderness Society (1975) 421 U.S. 240, 247; Trope v. Katz (1995) 11 Cal.4th 274, 278-279 [“California follows what is commonly referred to as the American rule, which provides that each party to a lawsuit must ordinarily pay his own attorney fees. [Citation.] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021, which states in pertinent part that ‘Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties ….’ [Citation.]”].)

b. Court’s Determination

The Court finds in favor of Plaintiff Maravilla.

As acknowledged by the moving papers, “fees are only even potentially recoverable if Plaintiff prevails on her FEHA causes of action.” (Mot., p. 7.)

Here, the Court has overruled ATE’s demurrer. Consequently, all the FEHA claims remain viable for pleading purposes. “In civil actions brought under [the FEHA], the court, in its discretion, may award to the prevailing party, including the [civil rights] department, reasonable attorney’s fees and costs, including expert witness fees, except that, notwithstanding Section 998 of the Code of Civil Procedure, a prevailing defendant shall not be awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” (Code Civ. Proc., 12965, subd. (b).) Given that the FEHA claims have survived, there is a statutory basis for fees.

ATE’s motion is thus DENIED as to striking fees from the Complaint. 

IV. Conclusion

A. Demurrer

Defendant Air Tiger Express (USA) Inc.’s Demurrer to Plaintiff Patricia Maravilla’s Complaint is OVERRULED.

B. Motion to Strike

Defendant Air Tiger Express (USA) Inc.’s Motion to Strike Portions of the Complaint is DENIED.