Judge Bruce G. Iwasaki, Case Number: 23STCV26889, Date: 2024-08-14 Tentative Ruling

Moving Party: Defendants Miner, Ltd.; Miner GC, Limited Partnership; Miner GP, LLC; Onpoint Group LLC.

Responding Party: Erick Zavala

Tentative Ruling: Defendants’ demurrer is SUSTAINED in its entirety. The motion to strike is DENIED as moot. Plaintiff is granted 20 days leave to amend.

Erick Zavala (Zavala/Plaintiff) filed suit on November 2, 2023 against Defendants Miner, Ltd.; Miner GC, Limited Partnership; Miner GP, LLC; and Onpoint Group LLC (collectively, Defendants) for several labor law violations. The operative First Amended Complaint (FAC) was filed on June 4, 2024, and alleges the following:

Defendants are in the business of installing, repairing and servicing loading docks and electrical retracting doors at commercial facilities and warehouses. (FAC, ¶ 12.) Plaintiff began working for Defendants in May of 2022 as a service technician, whose job duties involved traveling to facilities to install, repair, and maintain electrical doors. (Id. at ¶ 13.) On February 13, 2023, Plaintiff was involved in an automobile accident that resulted in serious injuries. (Id. at ¶ 17.) Plaintiff received medical treatment and physical therapy for his injuries, moreover Plaintiff’s physician emailed Plaintiff’s supervisor and manager requesting that Plaintiff be placed on light duty from home. (Id. at ¶ 17.) For the next several months Plaintiff worked from home. On May 12, 2023 Plaintiff received a letter from Defendants informing him his employment had been terminated effective May 5, 2023. ((Id. at ¶ 23.)

Throughout his employ, Plaintiff alleges multiple statutory violations including failure to provide meal periods, failure to provide overtime compensation, and failure to provide accurate wage statements. The FAC pleads fifteen causes of action:

4. Failure to Furnish Accurate, Itemized Wage Statements (Lab. Code, §§ 226, 226.3);

5. Waiting-Time Penalties for Nonpayment of Wages (Lab. Code, §§ 201, 203, 218);

7. Discrimination in Violation of FEHA (Gov. Code, §§ 12940(a), (m)(2); 12941);

9. Failure to Engage in Interactive Process in Violation of FEHA (Gov. Code, § 12940(n));

11. Failure to Prevent/Remedy Discrimination, Harassment, and/or Retaliation in Violation of FEHA (Gov. Code, § 12940(k));

The motion now before the Court is Defendants demurrer and motion to strike. Defendants demur to causes of action seven through fifteen. Plaintiff opposes the demurrer, but not the motion to strike. Defendants file a reply to the opposition to the demurrer, and a notice of non-opposition to the motion to strike.

“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.” (Code Civ. Proc. §430.41(a); see also Code Civ. Proc. §435.5 (imposing similar requirements for a motion to strike).) Defendants provide the Declaration of Shane Bekian which states that the parties participated in extensive meet and confer efforts from January 17, 2024 until May of 2024. Although the parties were unable to resolve the issue, the requirements of both Code Civ. Proc. §§430.41(a) and 435.5 have been met. The Court now turns its attention to the demurrer and motion to strike.

“[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.)

Upon demurrer, Defendants contend that causes of action seven through fifteen fail to state sufficient facts to constitute a cause of action. The Court agrees and sustains the demurrer.

The seventh through the thirteenth causes of action all rely on whether the FAC sufficiently alleges discrimination in violation of FEHA. The elements of a disability discrimination claim under FEHA are: (1) that plaintiff suffered from a disability, (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations, and (3) plaintiff was subjected to an adverse employment action because of the disability. (Glynn v. Superior Court (2019) 42 Cal.App.5^th 47, 53, (“Glynn”.))

Defendants contend the FAC fails to draw a nexus between Plaintiff’s physical disability and his termination. (Dem., 11:16-18.) Plaintiff responds that the FAC explicitly alleges Defendants wrongfully discriminated against him by denying Plaintiff work opportunities, interfered with his job duties, and terminated his employment. (Opp Papers, 2:8-11.) However, detail about how the discrimination took place is lacking. For example, in Glynn the court reversed summary judgment on appeal because it was found that although there was no animosity against Glynn with regard to his disability, there was an erroneous belief about his physical condition which triggered Glynn’s termination. (Glynn, supra, at 53-54.) Similarly, in Wallace v. County of Stanislaus (2016) 245 Cal.App.4^th 109, the plaintiff there was able to demonstrate they were forced to take unpaid leave because of their knee injury (Wallace, supra, 118-119 and 129.) Here, Plaintiff presents the basic facts that Plaintiff was injured in a car accident, was then able to work from home, and then was subsequently terminated. Without more detail as to the discrimination suffered by Plaintiff, the Court finds no nexus between Plaintiff’s injury, and the subsequent termination. With no nexus the discrimination claim fails, as does all related claims. Therefore, the demurrer is sustained, with leave to amend, as to causes of action seven through thirteen.

Labor Code section 1102.5 provides whistleblowers protection from employer retaliation. (People ex rel. Garcia-Brower v. Kolla’s, Inc. (2023) 14 Cal.5^th 719, 722, internal citation omitted.). Section 1102.5 was amended in 2013 with the following italicized language: “"[A]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee…”

Upon demurrer, Defendants contend the only time Plaintiff alleged he informed Defendants of their violations of federal and state law was after his termination. (See FAC, ¶ 27.) Defendants argue this cannot be the basis of a cause of action under section 1102.5 as a matter of law. Defendants are correct, as the adverse treatment had already occurred. Nowhere in the FAC, does Plaintiff allege that he engaged in protected activity prior to termination. Therefore, the demurrer is sustained as to the fourteenth cause of action.

“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. It is well established that a termination premised on an employee’s refusal to violate either a statute or an administrative regulation may support a claim for wrongful termination in violation of public policy.” (Nosal-Tabor v. Sharp Chula Vista Medical Center (2015) 239 Cal.App.4th 1224, 1234, citation omitted.)

In the FAC, Plaintiff alleges the termination based on his disability was the violation of public policy here. However, as aforementioned, the FAC fails to provide sufficient facts to allege discrimination. Therefore, the fifteenth cause of action also falls to demurrer.

The court may, upon motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436, subd. (a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., § 436, subd. (b).) The grounds for a motion to strike are that the pleading has irrelevant, false, or improper matter, or has not been drawn or filed in conformity with laws. The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc., § 437.)

A motion to strike any pleading must be filed “within the time allowed to respond to a pleading”—e.g., 30 days after service of the complaint or cross-complaint unless extended by court order or stipulation. [CCP § 435(b)(1)]. This does not affect the court's power to strike sua sponte. Courts are specifically authorized to strike a pleading upon a motion or at any time in the court's discretion. (CCP § 436.) The Court notes that motions to strike punitive damages may be granted, where the alleged facts do not support conclusions of malice, fraud or oppression. (Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.)

As each cause of action that requests punitive damages has been successfully demurred to, the motion to strike is denied as moot.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. (See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. As there is reasonable possibility of successful amendment, the Court shall grant 20 days leave to amend.

Accordingly, Defendants’ demurrer is sustained in its entirety. The motion to strike is denied as moot. Plaintiff is granted leave to amend. Plaintiff shall file and serve his amended complaint on or before September 4, 2024.

Department 58