Judge: Ashfaq G. Chowdhury, Case: 23GDCV00766, Date: 2024-02-09 Tentative Ruling

Case Number: 23GDCV00766    Hearing Date: February 9, 2024    Dept: E

Case No: 23GDCV00766
Hearing Date: 02/09/2024 – 8:30am

Trial Date: UNSET

Case Name: JUAN LEON, an individual; v. ISTAFF SOLUTIONS CORP, a corporate entity form unknown; and DOES 1-50 inclusive

[TENTATIVE RULING ON DEMURRER]

Moving Party: Defendant, California Box II

Responding Party: Plaintiff, Juan Leon

Moving Papers: Notice/Demurrer; Proposed Order;

Opposition Papers: Opposition; Rahmani Declaration

Reply Papers: Reply

RELIEF REQUESTED
Defendant, California Box II, demurs to the first through seventh causes of action in the FAC on grounds of failure state facts sufficient to constitute a cause of action.

Defendant demurs to the eighth cause of action in the FAC on grounds that the claim is barred by the statute of limitations.

BACKGROUND
On 04/18/2023, Plaintiff filed a Complaint.

On 08/02/2023, Plaintiff filed a First Amended Complaint (FAC). The FAC alleges the following 11 causes of action: (1) Discrimination in Violation of Gov. Code §12940 et seq., (2) Failure to Accommodate in Violation of Gov. Code § 12940(m), (3) Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n), (4) Age Discrimination in Violation of Gov. Code §12940 et seq., (5) Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k), (6) Retaliation in Violation of Gov. Code §12940(h), (7) Wrongful Termination, (8) Failure to Provide Employment Records in Violation of Cal. Labor Code §1198.5 et seq., (9) Failure To Pay Overtime & Wages, (10) Failure to Pay All Compensation at Termination; Waiting Time Penalties, and (11) Violation of Business & Professions Code § 17200 et seq.

The Court notes that the FAC does not list demurring Defendant as a Defendant on the first page of the FAC. Demurring Defendant is first listed on page 2 of the FAC in ¶3. Further, in ¶5 of the FAC, the FAC notes, “Each reference in this complaint to “Defendant” and/or “Defendants” refers to iStaff, Cal Box, and also refers to all Defendants sued under fictitious names, jointly and severally.”

Plaintiff alleges that he was hired by Defendants as a cutting-device operator. (FAC ¶11.) Plaintiff alleges he was injured while performing tasks within the course and scope of his employment with Defendants when a piece of wood fell on his right foot, injuring his big toe. (FAC ¶12.) Plaintiff alleges he was disabled within the meaning of Gov’t Code §12926 because his injury limited him from performing major life activities, including, without limitation, working. (FAC ¶13.)

The causes of action in the FAC appear to arise from the actions of Defendants after Plaintiff reported the incident to his supervisor. (See FAC generally, and FAC ¶14.)

PROCEDURAL ANALYSIS
Proof of Service Timely Filed (CRC Rule 3.1300): Ok
16/21 Court Days Lapsed (CCP 1005(b)): Ok
Proper Address (CCP §1013, §1013a, §1013b): Ok

Meet and Confer
A party filing a demurrer “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 parties shall meet and confer at least five days before the date the responsive pleading is due. If the parties are not able to meet and confer at least five days prior to the date the responsive pleading is due, the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons why the parties could not meet and confer.”  (Code Civ. Proc., §430.41, subd. (a)(2).)

Here, Defendant’s counsel alleged he met and conferred. (See Madoni Decl. ¶¶4-5.)

Plaintiff argues in Opposition that Defendant did not meet and confer because Defendant’s meet and confer letter and subsequent phone calls were limited to narrow issues in the third and fourth causes of action. Plaintiff argues that the Court should overrule the demurrer as to the first, second, fifth, sixth, seventh, and eighth causes of action for Defendnat failing to meet and confer.

Failure to sufficiently meet and confer is not grounds to overrule or sustain a demurrer. (Code Civ. Proc., §430.41(a)(4).)

Therefore, the Court will not overrule the first, second, fifth, sixth, seventh, and eighth causes of action for Defendant failing to meet and confer.

LEGAL STANDARDS FOR DEMURRERS

Demurrer – Sufficiency
A demurrer for sufficiency tests whether the complaint states a cause of action.  (Hahn v. Mirda, (2007) 147 Cal.App.4th 740, 747.)  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.)  The court “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law ….”  (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)  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 pleadings alone and not the evidence or other extrinsic matters; therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.  (Code Civ. Proc., §§ 430.30, 430.70.)  The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.) 

The general rule is that the plaintiff need only allege ultimate facts, not evidentiary facts.  (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.)  “All that is required of a plaintiff, as a matter of pleading … is that his complaint set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of his cause of action.”  (Rannard v. Lockheed Aircraft Corp. (1945) 26 Cal.2d 149, 156-157.) 

On demurrer, a trial court has an independent duty to “determine whether or not the … complaint alleges facts sufficient to state a cause of action under any legal theory.”  (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 734.)  Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged but “must dispose of an entire cause of action to be sustained.”  (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.)  “Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)

Demurrer – Uncertainty
A special demurrer for uncertainty, CCP section 430.10(f), is disfavored and will only be sustained where the pleading is so bad that defendant cannot reasonably respond—i.e., cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him/her.  (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.)  Moreover, even if the pleading is somewhat vague, “ambiguities can be clarified under modern discovery procedures.” (Ibid.)

ANALYSIS

Preliminary

The Reply notes that the Opposition violated CRC, rule 3.1113(d) because it exceeds the 15-page limit. Defendant requests that the Court refuse to consider any arguments beyond the 15-page limit because it provides Plaintiff an unfair advantage. Defendant notes that the Court must accept an oversized brief but that the Court in its discretion may refuse to consider an oversized brief.

Here, the Court utilizes its discretion and considers the entire Opposition.

First Cause of Action - Discrimination in Violation of Gov. Code §12940 et seq

As to the first cause of action, Defendant cites the following portion of Sandell v. Taylor-Listug, Inc. :

In the context of disability discrimination, the plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 254, 102 Cal.Rptr.2d 55.) To establish a prima facie case, a plaintiff must show “ ‘ “ ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were “based on a [prohibited] discriminatory criterion....” ’ ” ' [Citation.]” (Reid v. Google (2010) 50 Cal.4th 512, 520 fn. 2, 113 Cal.Rptr.3d 327, 235 P.3d 988, (Reid ).) The prima facie burden is light; the evidence necessary to sustain the burden is minimal. 

(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310.)

Defendant then argues:

In this matter, the Plaintiff fails to allege any action taken based on the Defendant California Box II. In essence, the Plaintiff alleges he injured his big toe at work. The Plaintiff alleges he informed his employer. The Plaintiff does not allege that he requested medical attention, needed an accommodation. The Plaintiff does not allege that the Defendant knew or should have known the Plaintiff's alleged pain of his injury "increased over time." (FAC ¶15.) The Plaintiff does not allege anywhere that the Defendant took any action against the Plaintiff other than to allow the Plaintiff to continue working until Plaintiff resigned two months later.

Based on the above, the Plaintiff has failed to allege a prima facie case of discrimination based on disability. Accordingly, the court should sustain the demurrer to the first cause of action.

(Dem. p. 4.)

TENTATIVE RULING FIRST CAUSE OF ACTION
The Court will hear argument

Defendant cites to Sandell v. Taylor-Listug, Inc. to indicate what the elements are for the first cause of action. Despite Sandell indicating the elements for the first cause of action, Defendant does not explain what elements in Sandell are not alleged. Defendant makes several arguments as to what was not alleged, yet Defendant provides no legal authority that those things must be alleged.

Though, under a broad reading, it could be argued that Plaintiff appears to allege the first Sandell element in ¶¶ 12-15, 23, and 24 of the FAC,  the second Sandell element in ¶ 25, and the third Sandell element in ¶¶ 29, 14, 15, 17, and 18, the Court is not fully persuaded that the elements have yet been clearly pleaded.

The Court will hear from Plaintiff as to how his alleged disability was conveyed to Defendant, how he engaged in the interactive process, and how Defendant suffered an adverse employment action as a result of his alleged disability or perceived disability.

Second Cause of Action - Failure to Accommodate in Violation of Gov. Code § 12940(m)

Defendant states as follows, “As noted in Gelfo v. Lockheed Martin Corp (2006) 140 Cal.App.4th 34, to state a cause of action for failure to engage in the interactive process ‘First, the employee must request an accommodation. (Prilliman v. United Air Lines, inc. (1997) 53 Cal.App.4th 935, 954, 62 Cal.Rptr.2d 142.) Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.’ (Id. at 54. Emphasis added.)” (Dem. p. 4.)

Defendant then argues that Plaintiff did not allege that he either requested an accommodation or initiated the interactive process.

TENTATIVE RULING SECOND CAUSE OF ACTION
The Court will hear argument as to this cause of action.

Plaintiff alleged he requested an accommodation in ¶ 18. “Plaintiff suffered from harassment, discrimination, retaliation, and ultimately termination on the basis of his disability, age, requesting accommodation, and engagement in protected activity. Further, Defendants utterly failed to provide workers’ compensation paperwork, failed to engage in a good-faith interactive process, and failed to offer any reasonable accommodation.” (FAC ¶18.) Further, ¶18 was incorporated into the second cause of action.

Plaintiff appears to try to allege he initiated the interactive process in ¶¶ 14 and 15, and both those paragraphs are incorporated into the second cause of action. But the allegation is, in the Court’s view, unclear.

Plaintiff also appears to allege initiation of the interactive process in ¶ 40 of the second cause of action. “Defendants failed and refused to accommodate Plaintiff’s needs, and, failed and refused to engage in an interactive process with Plaintiff, and, failed to address Plaintiff’s needs in light of his disabilities.” (FAC ¶ 40.) But, again, it is unclear where and how Plaintiff alleges that he initiated the interactive process.

Third Cause of Action - Failure to Engage in Interactive Process in Violation of Gov. Code § 12940(n)

Defendant argues that Plaintiff did not allege that he either requested an accommodation or initiated the interactive process.

TENTATIVE RULING THIRD CAUSE OF ACTION
The Court will hear argument as to this cause of action.

Fourth Cause of Action - Age Discrimination in Violation of Gov. Code §12940 et seq

Defendant argues as follows:

As set forth in Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, in order to set forth a prima facie case of discrimination "Generally, the plaintiff must provide evidence that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Id. at 355.) "While the plaintiffs prima facie burden is "not onerous" (Burdine, supra, at p. 253, 101 S.Ct. 1089), he must at least show " 'actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were "based on a [prohibited] discriminatory criterion...."." (Ibid. Emphasis added.)

In this matter, the Plaintiff alleges no facts that his constructive termination had anything to do with age. In fact, the Plaintiff does not allege that the Defendant was even aware of his age. (Plaintiff alleges that Defendants were aware of his age because the plaintiff maintained a personnel file.) (FAC ¶71.) While the Plaintiff's complaint does allege he was discriminated against based on an injury to his big toe, and he alleges that the discrimination led to his resignation, there is not one single allegation that the Plaintiff was harassed or discriminated against based on his age.

(Dem. p. 6.)

TENTATIVE RULING FOURTH CAUSE OF ACTION

The Court will hear argument. The Court is not currently persuaded that the Plaintiff has adequately pleaded this cause of action.

TENTATIVE RULING FIFTH CAUSE OF ACTION - Failure to Prevent Discrimination in Violation of Gov. Code § 12940(k)
Defendant does not make clear what the elements are necessary for this cause of action.

Further, it is unclear as to how Defendant is attacking those elements, whatever they may be. The conclusory arguments asserted by Defendant on page 8 of the demurrer are unavailing.

The Court will hear argument.

TENTATIVE RULING SIXTH CAUSE OF ACTION - Sixth Cause of Action - Retaliation in Violation of Gov. Code §12940(h)
Defendant states, “Additionally, "In order to establish a prima facie claim of retaliation under this section, plaintiff must show: (1) she engaged in a protected activity, (2) she was subjected to an adverse employment action, and (3) there is a causal link between the protected activity and the adverse employment action." (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.AppAth 1241, 1252.)” (Dem. p. 7.)

After citing this standard, it is unclear which elements Defendant is arguing that Plaintiff did not allege.

While one could argue that the necessary elements are alleged in ¶¶ 11-20 and ¶¶ 90-96 of the FAC, the Court is not fully persuaded and will hear argument.

TENTATIVE RULING -SEVENTH CAUSE OF ACTION - Wrongful Termination

Defendant does not indicate what must be alleged to successfully allege a wrongful termination cause of action. Further, it is unclear what arguments Defendant is asserting as to wrongful termination.

The Court will hear argument.

Eighth Cause of Action - Failure to Provide Employment Records in Violation of Cal. Labor Code §1198.5 et seq
Defendant argues as follows:

Under Code of Civil Procedure §340, the statute of limitations for an action to recover a penalty imposed by a statute is one year. As the Plaintiff's complaint alleges, he requested his employment records on January 25, 2022. (FAC ¶19.) Plaintiff's right to penalties would have accrued a month later at the end of February 2022, meaning that the very latest the Plaintiff could have brought an action to recover those penalties under Labor Code § 1198.5 would have been February 2023. However, the Plaintiff did not file his initial complaint in this matter until the end of April 2023.

Accordingly, the Plaintiff is barred from seeking any civil penalties and the court should sustain the demurrer to the eighth cause of action without leave to amend.

(Dem. p. 8.)

In Opposition, Plaintiff does not address this issue.

In Reply, Defendant notes that the Opposition failed to oppose this issue and that this failure to oppose should be construed as a concession to the demurrer on the eighth cause of action.

TENTATIVE RULING EIGHTH CAUSE OF ACTION

The Court will hear argument as to the eighth cause of action.