Judge Bruce G. Iwasaki

Department 58

Hearing Date: January 7, 2025

Case Name: Anderson v. 5 Seasons Showroom LLC

Case No.: 24STCV16348

Matter: Demurrer

Moving Party: Defendant 5 Seasons Showroom LLC

Responding Party: Plaintiff Joanne Anderson

Tentative Ruling: The Demurrer to the First Amended Complaint is sustained as to the fourth and sixth causes of action without leave to amend, and overruled to the first, second, third, and fifth causes of action.

This is an employment discrimination and wage and hour dispute. Plaintiff Joanne Anderson (Plaintiff) filed a First Amended Complaint (FAC) on October 22, 2024 against her former employer, Defendant 5 Seasons Showroom LLC (Defendant), for (1.) wrongful termination in violation of public policy, (2.) discrimination based upon disability/perceived disability, (3.) harassment based upon disability/perceived disability, (4.) retaliation, (5.) failure to prevent discrimination, harassment and retaliation, (6.) intentional infliction of emotional distress, (7.) failure to pay wages and (8.) waiting time penalties.

Defendant 5 Seasons Showroom LLC demurs to the FAC on the grounds that Plaintiff has failed to state a claim. The seventh and eighth causes of action, which allege violations of the California Labor Code, are not the subject of this demurrer. Plaintiff opposes the demurrer.

The demurrer is sustained in part and overruled in part.

Legal Standard for Demurrers

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) 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 applying these standards, the court liberally construes the complaint to determine whether a cause of action has been stated. (Picton v. Anderson Union High School Dist. (1996) 50 Cal.App.4th 726, 733.)

Analysis

First, Second, Third, Fourth and Fifth Causes of Action based on a FEHA Disability:

Defendant argues the first, second, third, fourth and fifth causes of action in the FAC fail to state a claim because Plaintiff has not alleged a disability as defined by FEHA. Each of these causes of action allege discrimination on the basis of Plaintiff’s alleged “disability/perceived disability.”

Under FEHA, it is unlawful for an employer, because of a person’s physical or mental disability “to discharge the person from employment….” (Gov. Code, § 12940, subd. (a).) To plead a prima facie claim for disability discrimination under the FEHA, a plaintiff must show: (1) she suffers from a disability or was regarded by her employer as having a disability; (2) she is otherwise qualified to do her job; and (3) she was subjected to adverse employment action because of her disability.” (Jensen v. Wells Fargo Bank (2000) 85 Cal. App. 4th 245, 255.)

The demurrer argues, however, that Plaintiff has not alleged that she suffered from a disability as defined under FEHA.

As a preliminary matter, “[n]ot every illness qualifies as [a] disability.” (Featherstone v. S. California Permanente Med. Grp. (2017) 10 Cal. App. 5th 1150, 1167.)

“Physical disability” is defined under FEHA to include “[h]aving any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss” that both (1) affects one or more of the “body['s] systems,” including the “musculoskeletal,” “genitourinary,” and “hemic” systems, and (2) “[l]imits a major life activity.” (Gov. Code., § 12926, subd. (m)(1).) The meaning of “major life activity” is “broadly construed” and includes “working.” (Gov. Code, § 12926, subd. (m)(1)(B)(iii).) A limit on a major life activity means simply that “it makes the achievement of the major life activity difficult.” (Id., subd. (m)(1)(B)(ii).)

Disability, however, does not include “conditions that are mild, which do not limit a major life activity, as determined on a case-by-case basis. These excluded conditions have little or no residual effects, such as the common cold; seasonal or common influenza; minor cuts, sprains, muscle aches, soreness, bruises, or abrasions; non-migraine headaches, and minor and non-chronic gastrointestinal disorders.” (Cal. Code Regs., tit. 2, § 11065, subd. (9)(B).)

Here, the FAC alleges that Plaintiff “had a very serious medical condition that required surgery. Specifically, Plaintiff informed Defendant that she suffered from recurrent sinusitis which caused Plaintiff to experience painful symptoms including significant sinus pain and headaches, swelling in her nasal cavity due to congestion, and frequent sinus infections.” (FAC ¶ 3.) Plaintiff further alleges that, over the next several months, her health condition continued to deteriorate as she regularly suffered from painful sinus infections and related symptoms; as a result, Plaintiff was occasionally required to take time off of work due to her condition. (FAC ¶ 7.)

Additionally, Plaintiff informed Defendant that her condition would require surgery that would also result in her needing to take additional time off from work to recover. (FAC ¶ 3.)

These allegations sufficiently show the existence of an ongoing medical condition that repeatedly required Plaintiff to take days off of work because – as the Court may infer – she was suffering from “significant sinus pain and headaches.”

To be sure, the allegations provide only the bare minimum of supporting detail and only vague, generalized assertions of the limitation of major life activity. However, “[r]epeated or extended absences from work may constitute a limitation on the major life activity of working.” (Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 588; id. at p. 578 [finding that a series of nine doctor appointments and the possibility of missing more work for surgery limited plaintiff's major life activity of working]; see also Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 595 [“[Plaintiff's] physical impairment limited the major life activity of working because it required [plaintiff] to be absent from work periodically over several months to travel to an out-of-state clinic for medical testing.”].) As such, these allegations are sufficient to allege a disability at the pleading stage.

Defendant also contends that the act of providing notice of surgery alone does not suggest she suffered from a disability, citing Avila v. Cont’l Airlines, Inc. (2008) 165 Cal. App. 4th 1237, 1249 for the proposition that “[i]nforming [defendant] merely that plaintiff had been hospitalized was not sufficient to put [defendant] on notice that plaintiff was suffering from a qualifying disability.” (Dem. 7:10-22 [also citing Sanchez v. Master Protection, LP (C.D. Cal., Sept. 29, 2021, No. 220CV08472VAPRAOX) 2021 WL 5994523, at *6 [holding notice of surgery “does not suggest [plaintiff] suffered from a disability”].)

However, the facts here are not a merely hospitalization, but advance notice of a surgery for ongoing medical condition that, allegedly, repeatedly interrupted Plaintiff’s ability to perform her employment duties. Although, the demurrer repeatedly characterizes the surgery as “elective,” this fact is not alleged in the FAC and also not determinative of whether the surgery indicates Plaintiff suffered from a disability.

Secondly, Defendant also argues that there are no allegations that Defendant “regarded” Plaintiff as disabled. This argument is not well taken.

The allegations show that at the outset Plaintiff informed Defendant that she suffered from “ recurrent sinusitis which caused plaintiff to experience painful symptoms including significant sinus pain and headaches, swelling in her nasal cavity due to congestion, and frequent sinus infections.” (FAC ¶ 3.) Further, she indicated that she had to have “sinus surgery” and would “need to t take at least a couple of weeks off of work to recover following the surgery.” (FAC ¶ 3; see also FAC ¶ 5 [demonstrating Defendant understood the nature of the surgery and that it was tied to her alleged disability].) Finally, the FAC alleges that Defendant was regularly informed of Plaintiff’s “deteriorating health condition, including continually reminding defendants of her upcoming surgery.” (FAC ¶ 7.) These allegations are sufficient to show that Defendant was aware of Plaintiff’s alleged disability.

Lastly, Defendant demurs to these causes of action on the grounds that the FAC fails to allege Plaintiff was terminated “because of” her purported disability. This argument is based on Defendant’s contention that the FAC does not sufficiently allege Defendant had knowledge of Plaintiff’s alleged disability. (Dem., 9:18-10:1 [citing Featherstone v. S. California Permanente Med. Grp., supra, 10 Cal. App. 5th at 1167 [“Put simply, unless there is some evidence an employer knows an employee is suffering from a disability, it is impossible for an employee to claim he or she was discharged because of it . . . .”].].) Based on the Court’s determination above, this argument also fails.

The demurrer on this ground is overruled.

Fourth Cause of Action for Retaliation:

Defendant also demurs to the fourth cause of action for retaliation on the grounds that Plaintiff has failed to allege any protected activity to state a claim.

The retaliation provision of FEHA forbids an employer “to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under” FEHA. (Gov. Code., § 12940, subd. (h).) That is, the person has engaged in protected activity. California courts have generally held that in order to qualify as a “protected activity” an employee’s conduct must “demonstrate some degree of opposition to or protest of the employer's conduct or practice based on the employee's reasonable belief that the employer's action or practice is unlawful.” (Moore v. Regents of the Univ. of California (2016) 248 Cal. App. 4th 216, 246.) Moreover, a prima facie showing requires the employee to show the adverse action about which he complains happened after or simultaneously with his protected activity. (Morgan v. Regents of University of California (2000) 88 Cal.App.4th 52, 69.)

Here, FAC alleges Defendant retaliated against Plaintiff by terminating her employment. (FAC ¶ 63.) The retaliation was in response to Plaintiff “reject[ing] illegal activity, i.e., discrimination and harassment.” (FAC ¶ 62.) Plaintiff also alleges she “requested and was granted a medical leave of absence.” (FAC ¶ 62.) Based on the legal authority above, these allegations do not constitute protected activity under FEHA. Specifically, Plaintiff alleges no facts showing any communication by Plaintiff of her “reasonable belief that the employer's action or practice is unlawful” prior to her termination. As such, Plaintiff has not alleged that she engaged in any protected activity under FEHA.

The demurrer to this cause of action is sustained.

Sixth Cause of action for Intentional Infliction of Emotional Distress:

Finally, Defendant demurs to the sixth cause of action on the grounds that Plaintiff has failed to allege extreme and outrageous conduct or that she suffered from extreme emotional distress.

The elements of the tort of intentional infliction of emotional distress are: “ ‘ “ ‘(1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct....’ ” ' ” (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

In opposing the demurrer, Plaintiff points to her allegations that she was told by Defendant that her surgery was “an inconvenience” to Defendant and was told in a very loud and aggressive tone, that it was “not an ideal time” for Plaintiff to be out for her surgery. (FAC ¶ 8.) Further, within one day of returning to work from medical leave, Plaintiff was terminated. (FAC ¶ 11.) As result, the FAC alleges that “Plaintiff suffered and continues to suffer embarrassment, humiliation, emotional distress, mental anguish and severe shock to her nervous system, and thereby sustained serious injuries to her physical and mental health. . .” (FAC ¶ 33.)

The demurrer is well taken; Plaintiff’s allegations do not demonstrate conduct “so extreme as to exceed all bounds of that usually tolerated in a civilized community.”

“ ‘ “Conduct to be outrageous must be so extreme as to exceed all bounds of that usually tolerated in a civilized community.” ’ ” (Potter, supra, 6 Cal.4th at p. 1001.) “ ‘Generally, conduct will be found to be actionable where the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, “Outrageous!” [Citations.]’ ” (Helgeson v. American International Group, Inc. (S.D.Cal.1999) 44 F.Supp.2d 1091, 1095; KOVR TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1028.) “[L]iability ‘ “does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities,” but only to conduct so extreme and outrageous “as to go beyond all possible bonds of decency....” ’ [Citation.]” (Ankeny v. Lockheed Missiles & Space Co. (1979) 88 Cal.App.3d 531, 537.)

The statement made to Plaintiff were – at worst – unprofessional and ill advised, but not outrageous. Further, in the employment context, such routine decisions as hiring and firing do not constitute extreme and outrageous conduct as a matter of law. (Janken v. GM Hughes Electronics (1996) 46 Cal.App.4th 55, 64; Schneider v. TRW, Inc. (9th Cir.1991) 938 F.2d 986, 992; Trerice v. Blue Cross of California (1989) 209 Cal.App.3d 878, 883–884; Ankeny v. Lockheed Missiles & Space Co., supra, 88 Cal.App.3d at pp. 536–537.)

In Janken, employees of a large aircraft company sued their supervisors for age discrimination and for intentional infliction of emotional distress. Plaintiffs alleged these supervisors made personnel management decisions pursuant to the company's policy of discriminating against employees over the age of 40 by terminating them or forcing them to resign without good cause. The Janken court affirmed trial court rulings sustaining demurrers to both causes of action. With respect to the emotional distress claim, the Janken court found that plaintiffs failed to plead facts to satisfy the outrageous conduct requirement. The court reasoned: “Managing personnel is not outrageous conduct beyond the bounds of human decency, but rather conduct essential to the welfare and prosperity of society. A simple pleading of personnel management activity is insufficient to support a claim of intentional infliction of emotional distress, even if improper motivation is alleged. If personnel management decisions are improperly motivated, the remedy is a suit against the employer for discrimination.” (Janken, supra, 46 Cal.App.4th at p. 64.)

Thus, the demurrer to this cause of action is sustained.

Conclusion

The demurrer is sustained as to the fourth and sixth cause of action and overruled as to the first, second, third, and fifth causes of action. Plaintiff shall not have leave to amend.