Judge Christopher K. Lui, Case Number: 23STCV27703, Date: 2024-03-19 Tentative Ruling

Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. Counsel must contact the staff in Department 76 to inform the Court whether they wish to submit on the tentative, or to argue the matter. As required by Rule 3.1308(a), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, the Court may adopt the tentative ruling as the final ruling.

Plaintiff alleges that she was discriminated against and retaliated against, resulting in her termination, based on her disabilities and protected activities.

Defendant DTF Prep, LLC’s demurrer to the Complaint is OVERRULED as to the first and fourth causes of action, SUSTAINED with leave to amend as to the second, third and fifth causes of action, and is MOOT as to the sixth cause of action.

Rights Department (Charge No. 202211-18899316) dated November 21, 2022 as the “Date Filed,” produced in response to a California Public Records Act request, (Request No. 202312-04978718). A true and correct copy is attached as Exhibit A to the Declaration of Richard Mojica in Support of Request for Judicial Notice [“Mojica Decl. RJN”].

Bazerkanian, dated November 21, 2022 regarding Plaintiff’s CRD charge, (Charge No. 202211-18899316), produced in response to a California Public Records Act request, (Request No. 202312-04978718). A true and correct copy is attached as Exhibit B to Mojica Decl. RJN.

3. Notice of Case Closure and Right to Sue letter from the CRD to Plaintiff LAURA HERNANDEZ, dated November 21, 2022, regarding her CRD charge, (Charge No. 202211-18899316), produced in response to a California Public Records Act request, (Request No. 202312-04978718). A true and correct copy is attached as Exhibit C to Mojica Decl. RJN.

04978718) for CRD Case No. 202211-18899316 for records of Plaintiff LAURA HERNANDEZ, dated December 27, 2023, is attached as Exhibit D. to Mojica Decl. RJN.

Pursuant to Evid. Code § 452(c), the Court may take judicial notice of official records of an administrative agency (Ordlock v. Franchise Tax Bd. (2006) 38 Cal.4th 897, 912) and official acts of a state agency (but not the truth of the matters asserted therein). (Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812, 854.)

The Declaration of Richard B. Mojica reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.

1. First Cause of Action (Disability Discrimination In Violation of Gov. Code, § 12940(a).

Defendant argues that the FEHA requires that an employee file a charge with California’s Civil Rights Department (“CRD”) (formerly the Department of Fair Employment and Housing) that sets forth the particulars of any FEHA violations, prior to filing a lawsuit. Although Plaintiff filed a charge with the CRD on November 21, 2022, she did not set forth the requisite particulars to satisfy the FEHA’s exhaustion requirement. See Exhibit (“Ex.”) A to Declaration of Richard Mojica; 11/21/22 CRD Charge; Request for Judicial Notice (“RJN”). In this regard, Plaintiff’s charge lists protected categories, but lacks any factual allegations relating to purported violations whatsoever.

In a related argument, respondents argue, in a hypothetical manner, that to the extent that factual bases exist for his claims of discrimination other than those fairly reflected in Jones's DFEH complaint, those other unspecified bases are barred by the failure to exhaust administrative remedies. Respondents do not specifically identify any allegations in the complaint or any other claims made by Jones which are purportedly not fairly reflected in the DFEH complaint. Aside from the fact that such a factually disembodied and hypothetical legal proposition is inappropriate for summary judgment or summary adjudication, we note that "allegations in a complaint [before the FEPC, the predecessor agency to the DFEH] serve no purpose other than to get an investigation in motion." (Citation omitted.) Significantly, if the DFEH decides to issue an accusation, the accusation "shall set forth the nature of the charges . . . and shall require the respondent to answer the charges at a hearing." (Gov. Code, § 12965, subd. (a).) Thus, it is erroneous to assume, as respondents do, that because precise actions claiming to constitute racial discrimination may not be specifically mentioned in a DFEH complaint, the Department cannot investigate them and could not issue an accusation based on the results of its investigation. Although no accusation was issued in the instant case, there is no evidence that the Department did not investigate all claims reflected in Jones's superior court complaint. We conclude that respondents' claims that appellant failed to exhaust administrative remedies are without evidentiary support in the record.

(Jones v. L.A. Cmty. College Dist. (1988) 198 Cal.App.3d 794, 810 [bold emphasis and underlining added].)

Here, the CRD Complaint filed by Plaintiff on November 21, 2022, contained the following factual allegations:

Complainant was harassed because of complainant's race, sex/gender, disability (physical or mental), medical condition (cancer or genetic characteristic), other, family care or medical leave (cfra).

Complainant was discriminated against because of complainant's race, ancestry, national origin (includes language restrictions), sex/gender, disability (physical or mental), medical condition (cancer or genetic characteristic), other, association with a member of a protected class, family care or medical leave (cfra) and as a result of the discrimination was terminated, laid off, forced to quit, denied hire or promotion, reprimanded, denied equal pay, suspended, demoted, denied any employment benefit or privilege, denied reasonable accommodation for a disability, other, denied work opportunities or assignments, denied or

Complainant experienced retaliation because complainant requested or used a disability-related accommodation, requested or used family care or medical leave (cfra) and as a result was terminated, laid off, forced to quit, denied hire or promotion, reprimanded, denied equal pay, suspended, demoted, denied any employment benefit or privilege, denied reasonable accommodation for a disability, other, denied work opportunities or assignments, denied or forced to transfer, denied family care or medical leave (cfra).

This is sufficient to exhaust Plaintiff’s disability discrimination claim. As Jones, supra, 198 Cal.App.3d at 810 recognizes, specific instances are not required if there was sufficient information to instigate a DFEH/CRD investigation, and the DFEH/CRD would, after such investigation, notify the employer of the specific charges, to which the employer would respond.

“A prima facie case for discrimination ‘on grounds of physical disability under the FEHA requires [a] plaintiff to show: (1) he suffers from a disability; (2) he is otherwise qualified to do his job; and, (3) he was subjected to adverse employment action because of his disability.’” (Citation omitted.) “[T]o 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.” (Citation omitted.)

An “adverse employment action” is one that “materially affects the terms, conditions, or privileges of employment.” (Yanowitz, supra, 36 Cal.4th at pp. 1036, 1051.) “In the case of an institutional or corporate employer, the institution or corporation itself must have taken some official action with respect to the employee, such as hiring, firing, failing to promote, adverse job assignment, significant change in compensation or benefits, or official disciplinary action.” (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706, 708 [101 Cal. Rptr. 3d 773, 219 P.3d 749] (Roby) [demoting employee to answering the office telephones during office parties and firing employee constituted adverse employment actions].) An adverse employment action refers not only to “ultimate employment actions such as termination or demotion, but also … actions that are reasonably likely to adversely and materially affect an employee's job performance or opportunity for advancement.” (Yanowitz, at p. 1054.) That said, “[m]inor or relatively trivial adverse actions or conduct by employers or fellow employees that, from an objective perspective, are reasonably likely to do no more than anger or upset an employee cannot properly be viewed as materially affecting the terms, conditions, or privileges of employment and are not actionable.” (Ibid.)

Here, Plaintiff pleads that her physical disability is a repetitive motion injury to her right hand which she reported to Defendant on December 18, 2019, and for which she had several emergency room visits and received treatment until March 2020, when she filed a workers’ compensation claim for her right-hand injury. (Complaint, ¶¶ 12 – 16.)

Plaintiff alleges that she was discriminated against in that Plaintiff’s request to switch to a morning shift was denied, despite other requests for that same time being accommodated. However, this is personnel management action which is merely not to Plaintiff’s liking, and does not constitute an adverse employment action.

discrimination or retaliation must demonstrate that he or she has been subjected to an adverse employment action that materially affects the terms, conditions, or privileges of employment, rather than simply that the employee has been subjected to an adverse action or treatment that reasonably would deter an employee from engaging in the protected activity. (Citation omitted.) “A change that is merely contrary to the employee's interests or not to the employee's liking is insufficient.” (Citation omitted.) “ ‘[W]orkplaces are rarely idyllic retreats, and the mere fact that an employee is displeased by an employer's act or omission does not elevate that act or omission to the level of a materially adverse employment action.’ [Citation.] If every minor change in working conditions or trivial action were a materially adverse action then any ‘action that an irritable, chip-on-the-shoulder employee did not like would form the basis of a discrimination suit.’ [Citation.]” (Citation omitted.) The plaintiff must show the employer's retaliatory actions had a detrimental and substantial effect on the plaintiff's employment. (Citations omitted.)

(McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386-87 [bold emphasis and underlining added].)

However, Plaintiff’s termination on June 31, 2020, when she was informed while staying home due to a positive Covid-19 test, that she would no longer be able to return to work and was told to sign a resignation letter to receive a severance check, is an adverse employment action. The inference to be drawn from Plaintiff’s Complaint, which is to be liberally construed on demurrer[1], is that Plaintiff was terminated due to her right-hand injury—for which she had filed a workers’ compensation claim.

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

“[W]hat is submitted to the DFEH must not only be construed liberally in favor of plaintiff, it must be construed in light of what might be uncovered by a reasonable investigation.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 268.)

A DFEH complaint will be deemed sufficient if the omitted claim was like or reasonably related to those included on the DFEH Complaint, even if such omitted claim occurred subsequent to the filing of the DFEH Complaint:

Similarly in Baker v. Children's Hospital Medical Center, supra, 209 Cal. App. 3d 1057, the court allowed the plaintiff to pursue claims not included in his DFEH charge but that were "like or reasonably related to" the claim that was made. . . . After discussing Sanchez, Oubichon, and other cases, the court concluded that ". . . the allegations of harassment and differential treatment encompass the allegations of discrimination in his DFEH complaint. Moreover, it is reasonable that an investigation of the allegations in the original DFEH complaint would lead to the investigation of subsequent discriminatory acts undertaken by respondents in retaliation for appellant's filing an internal grievance." ( Id. at p. 1065.)

(Okoli v. Lockheed Technical Operations Co. (1995) 36 Cal.App.4th 1607, 1616 [bold emphasis and underlining added].)

Here, the CRD Complaint filed by Plaintiff mentions failure to accommodate Plaintiff’s disability and also disability discrimination. It is reasonable that an investigation would uncover facts regarding failure to accommodate.

To establish a failure to accommodate claim, Brown must show (1) she has a disability covered by FEHA; (2) she can perform the essential functions of the position; and (3) LAUSD failed reasonably to accommodate her disability. (Jensen v. Wells Fargo Bank (2000) 85 Cal.App.4th 245, 256–257 [102 Cal. Rptr. 2d 55].) A “reasonable accommodation” means a modification or adjustment to the workplace that enables the employee to perform the essential functions of the job held or desired. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1010 [93 Cal. Rptr. 3d 338].) Although an accommodation is not reasonable if it produces an undue [*1108] hardship to the employer, a plaintiff need not initially plead or produce evidence showing that the accommodation would not impose such an undue hardship. (Bagatti v. Department of Rehabilitation (2002) 97 Cal.App.4th 344, 356 [118 Cal. Rptr. 2d 443].) Importantly, whether plaintiff's requested accommodation is reasonable cannot be determined on demurrer. (Id. at pp. 368–369.)

34. After sustaining work related injuries, Plaintiff had a qualified physical disability which was known to Defendants. Plaintiff alleges that despite her injury, she could have performed the essential functions of her job. Plaintiff alleges that she asked Defendants for reasonable accommodation of her physical disability. However, Defendants never reasonably accommodated her physical disability or possible restrictions.

Here, at most, Plaintiff alleges that she requested the morning shift which was denied. (Complaint, ¶ 18.) There is no indication that this was made as a request to accommodate her disabilities. Nor does Plaintiff allege any other requests for accommodation. In this regard, Plaintiff’s statutory claim is not pled with specificity. (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 604 [holding that FEHA are statutory claims that must be pled with specificity.)

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

4. Fourth Cause of Action (Failure to Prevent Discrimination in Violation of Gov. Code, § 12940(k).U

“The FEHA makes it a separate unlawful employment practice for an employer to “fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.” (§ 12940, subd. (k).)” (State Dept. of Health Services v. Superior Court (2003) 31 Cal.4th 1026, 1040.) “The employer's duty to prevent harassment and discrimination is affirmative and mandatory.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 288.)

“An employer is required to ‘take all reasonable steps to prevent harassment from occurring,’ and the failure to do so is itself unlawful. (§ 12940, subds. (j)(1), (k).)” (Rehmani v. Superior Cour (2012) 204 Cal.App.4th 945, 952.)

As discussed above at 1.A., the CRD Complaint was sufficient to encompass the disability discrimination claim and, thus, an investigation by the CRD would reasonably be expected to uncover whether Defendant took sufficient to steps to prevent such disability discrimination.

Given that the disability discrimination claim survives, the inference is that Defendant failed to take reasonable steps to prevent disability discrimination resulting in Plaintiff’s termination. The details—and evidence which is presumptively in Defendant’s possession—can be ascertained through discovery.

Here, the CRD Complaint alleges that Defendant retaliated against Plaintiff because she requested or used a disability-related accommodation, requested or used family care or medical leave (cfra).

The Complaint does not allege that Plaintiff engaged in any protected activities: she does not allege what accommodations she requested, nor does she allege that she requested or used CFRA leave.

However, to the extent Plaintiff seeks to base this claim on her workers’ compensation claim, this would come within the scope of her CRD Complaint, because an investigation would reasonably be expected to uncover her workers’ compensation claim for her disability.

Plaintiff’s filing of workers’ compensation claim for her injury (disability) would not constitute a protected activity, for which Defendant could not retaliate against Plaintiff., “under this part” of FEHA.

(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.

Nor does Plaintiff factually allege any other proceeding in which she participated “under this part” of the FEHA, nor the opposition of any other practice “forbidden under this part” of FEHA.

On January 29, 2024, Plaintiff dismissed this cause of action without prejudice. As such, the demurrer to the sixth cause of action is MOOT.

[1]

In ruling on a demurrer, the “allegations [of the complaint] must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452; see Rickley v. Goodfriend (2013) 212 Cal.App.4th 1136, 1141–1142 [151 Cal. Rptr. 3d 683] [court must liberally construe complaint, and draw all reasonable inferences in favor of its allegations].)

(Teva Pharmaceuticals USA, Inc. v. Superior Court (2013) 217 Cal.App.4th 96, 102.)