Judge: Christopher K. Lui, Case: 24STCV00996, Date: 2025-04-25 Tentative Ruling
Case Number: 24STCV00996 Hearing Date: April 25, 2025 Dept: 76
The following
tentative ruling is issued pursuant to Rule of Court 3.1308 at 12:02 PM on April 24, 2025.
Notice of intent
to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on
the motion addressed herein.
As required by
Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER
PARTIES and the staff of Department 76 by 4:00 p.m. on April 24, 2025.
Notice to Department 76 should be sent by
email to smcdept76@lacourt.org, with
opposing parties copied on the email. The
high volume of telephone calls to Department 76 may delay the Court’s receipt
of notice, so telephonic notice to 213-830-0776 should be reserved for
situations where parties are unable to give notice by email.
Per Rule of Court 3.1308, the Court may not entertain oral argument if notice of intention to appear is not given.
Plaintiff alleges that she was terminated for requesting sick leave due to her and her family contracting COVID.
Defendant Lancaster School District demurs to the Second Amended Complaint.
TENTATIVE RULING
Defendant Lancaster School District’s demurrer to the Second Amended Complaint is OVERRULED as to the first through fourth causes of action.
Defendant is ordered to answer the Second Amended Complaint within 10 days.
ANALYSIS
Demurrer
Request For Judicial Notice
Plaintiff requests that the Court take judicial notice of the following: (1) Defendant LANCASTER UNIFIED SCHOOL DISTRICT’s “2023-2023 COVID-19 Response Plan.”; (2) Defendant LANCASTER UNIFIED SCHOOL DISTRICT’s 2024 updated COVID-19 guidelines.Requests Nos. 1 and 2 are GRANTED. Defendant’s objection is OVERRULED.
Requests Nos. 1 and 2 are GRANTED. Defendant’s objection is OVERRULED.
Defendant’s own publications—although published after Plaintiff’s employment ended—may be considered as an admission that COVID-19 is a disability. “[W]e may take judicial notice of this data since they are contained in a publication issued by an agency of the state. (Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 772-773 [308 P.2d 872].)” (Board of Education v. Watson (1966) 63 Cal.2d 829, 836.)
The motion judge took judicial notice of the declarations filed in these
three cases, but not of the truth of their hearsay contents. The ruling was correct.
The hearsay rule applies to statements contained
in judicially noticed documents, and precludes consideration of those statements
for their truth unless an independent hearsay exception exists. (See 1 Witkin,
Cal. Evidence (4th ed. 2000) Judicial Notice, § 25, p. 119.)
(North Beverly Park Homeowners Assn. v. Bisno (2007) 147 Cal.App.4th 762, 778 [bold emphasis added].)
Evidence of a statement is not made inadmissible by the hearsay rule when
offered against the declarant in an action to which he is a party in either his
individual or representative capacity, regardless of whether the statement was made
in his individual or representative capacity.
(Evid. Code § 1220.)
Meet and Confer
The Declaration of Nathaniel B. Rosilez reflects that Defendant’s counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.
Discussion
Defendant Lancaster School District demurs to the Second Amended Complaint as follows:
1. First Cause of Action (Disability Discrimination—Gov. Code, § 12940, et seq.).
Defendant argues that a COVID-19 infection is not necessarily a disability under the FEHA, and Plaintiff has only pled mild symptoms akin to the flu, which is not a disability under the FEHA.
“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.)
(Doe v. Dep’t of Corr. & Rehab. (2019) 43 Cal.App.5th 721, 734.)
Pursuant to the Civil Rights Department’s Regulations, mild conditions such as influenza do not constitute a disability for purposes of the FEHA:
(9) “Disability” does not include:
(A) excluded conditions listed in the
Government Code section 12926 definitions of mental and physical disability. These
conditions are compulsive gambling, kleptomania, pyromania, or psychoactive substance
use disorders resulting from the current unlawful use of controlled substances or
other drugs, and “sexual behavior disorders,” as defined at section 11065(q), of
this article; or
(B) 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.
(2 CCR
11065(a)(9)[bold emphasis and underlining added].)
The Court has granted Plaintiff’s request
to take judicial notice of Defendant’s 2022-23 COVID-19 Response Plan. (RJN, Exh.
1.) Although this particular version was published on August 5, 2022, Version 3.1
was updated on 1/10/22, which is near the time of Plaintiff’s employment from September
13, 2021 until February 14, 2022. (Complaint, ¶ 8.)
In the document, Defendant admits the
following:
COVID-19 is not
like the flu, which is caused by a different type of virus. COVID-19 spreads more easily than the flu and
causes more serious illnesses in some people. It can also take longer
before people show symptoms (if they show any symptoms at all) and people can be
contagious for longer periods of time. Even
those individuals who contract COVID-19 but show no symptoms can still be contagious.
Certain people
are more at risk for serious complications because of COVID-19. Data show that the elderly and individuals with
medical conditions have a higher probability of developing severe COVID-19 complications
which can result in hospitalization, placement in an intensive care unit, or in
the worse cases, even death. Because of the
highly contagious nature of COVID-19 and the reported fatality rate of 1.6%, this
is a dangerous disease that should not be taken lightly.
Highly effective
vaccines are available to all who want one at no cost. The Delta Omicron variant of COVID-19 is dominant variant infecting people
throughout the United States. infecting primarily people who have not been vaccinated. Further, hospitalizations due to severe COVID-
19 are almost exclusively
with those individuals lacking vaccination.
We encourage all people to seek guidance from a physician and get vaccinated. If fully vaccinated, we encourage eligible individuals
to seek a booster vaccination.
. . .
Employees Showing
Symptoms of COVID-19
The District has
developed an investigation and response process guided by the CDPH, LADPH, and the
CDC for addressing COVID-19 symptomatic individuals. If an employee begins having symptoms while at
work, the following actions will be taken:
. . .
¿ The employee
shall leave the facility as directed by the supervisor to return home immediately,
if able to safely do so.
. . .
Isolation
¿ If you test POSITIVE
for COVID-19, isolate and stay at home and away from others. Contact your supervisor.
¿ Everyone with
COVID-19 must isolate for at least 5 calendar days. How long you have to isolate
depends on whether you have symptoms and if you get a negative follow-up viral test
on day 5 or later.
¿ If you test NEGATIVE
on day 5 or later with an antigen test, AND you have improving symptoms AND no fever,
contact HRS and share a copy of your test results. HRS will determine your earlier
date of return to work.
¿ If you do not
test, you may not return to work for at least 10 calendar days.
¿ Please remember
that effective October 1, 2021, Supplemental sick leave is no longer available and
you will be out on your own sick leave.
(2022-23 COVID-19 Response Plan, Version
4.0 (August 5, 2022), Pages 8, 10-11, 13; RJN Exh. 1.)
Here, a trier
of fact could find that Defendant’s policy treated a COVID-19 infection as a temporary
disability that limits the major life activity of working, regardless of the severity
of the symptoms. In any event, Plaintiff sufficiently pleads that she was suffering
from severe headaches and body aches that prevented her from working, and was placed
off work by her physician. (2AC, ¶ 13.). Combined with Defendant’s COVID-19 policy,
there are sufficient facts pled that Plaintiff was at least regarded as temporarily
disabled by Defendant.
In addition to protecting against discrimination based on an existing physical
disability, FEHA also prohibits discrimination based on a physical impairment that
is potentially disabling. (§ 12926.1, subd. (b).) Further, FEHA defines disability
to include: “Being regarded or treated by the employer … as having, or having
had, any physical condition that makes achievement of a major life activity difficult”
and being regarded by the employer as having a condition “that has no present disabling
effect but may become a physical disability … .” (§ 12926, subd. (m)(4) & (5).)
By protecting individuals “regarded … as” disabled, the Legislature intended “to
provide protection when an individual is erroneously or mistakenly believed to have
any physical or mental condition that limits a major life activity.” (Ibid.; § 12926.1, subd. (d).)
(Soria v. Univision Radio Los Angeles, Inc. (2016) 5 Cal.App.5th 570, 589 [bold emphasis and underlining added].)
In this regard, terminating Plaintiff while she was regarded as temporarily disabled would constitute disability discrimination.
The Court finds that, for purposes of demurrer, this cause of action is sufficiently pled.
The demurrer to the first cause of action is OVERRULED.
2. Second Cause of Action (Associational Disability Discrimination—Gov. Code, § 12940, et seq.)
Defendant argues that this cause is not sufficiently pled based on Plaintiff’s COVID-19 diagnosis.
A prima facie case of disability discrimination under FEHA requires a showing that (1) the plaintiff suffered
from a disability, (2) the plaintiff was otherwise qualified to do his or her job,
with or without reasonable accommodation, and (3) the plaintiff was subjected to
adverse employment action because of the disability. (Green
v. State of California (2007) 42
Cal.4th 254, 262 [64 Cal. Rptr. 3d 390, 165 P.3d 118] (Green); see Nealy v. City of
Santa Monica (2015) 234 Cal.App.4th
359, 378–379 [184 Cal. Rptr. 3d 9]; Jensen v. Wells Fargo
Bank (2000) 85 Cal.App.4th 245, 255
[102 Cal. Rptr. 2d 55] (Jensen).) Adapting
this framework to the associational discrimination context, the “disability” from
which the plaintiff suffers is his or her association with a disabled person. Respecting the third element, the disability must
be a substantial factor motivating the employer’s adverse employment action. (Cal.
Code Regs., tit. 2, § 11009, subd. (c); Harris v. City
of Santa Monica (2013) 56 Cal.4th
203, 229, 232 [152 Cal. Rptr. 3d 392, 294 P.3d 49]; Rope, supra, 220 Cal.App.4th at p. 658.)
(Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th
1028, 1037.)
Plaintiff alleges at ¶ 36 as follows at the 2AC:
36. Plaintiff’s son was diagnosed with COVID, he was also born with a lung defect which increased his changes of major symptoms, which falls within this category delineated under Government Code section 12926.
As to Plaintiff’s son with a lung defect, a COVID-19 diagnosis would be even more serious than Plaintiff’s infection, as she does not plead that she had an underlying condition. As discussed above, Plaintiff has sufficiently pled that she was regarded as disabled. The Court finds that the 2AC sufficiently alleges that Plaintiff’s son suffered from a condition which Defendant regarded as a disability, and Plaintiff’s termination for taking time off to care for her son to care for him is sufficient for this cause of action.
The demurrer to the second cause of action is OVERRULED.
3. Third Cause of Action (Failure to Provide Reasonable Accommodations—Gov. Code § 12940 et seq.).
Defendant argues that Plaintiff has not pled an underlying disability.
“[T]he FEHA imposes an affirmative duty upon an employer to offer reasonable accommodations to an employee the employer knows to have a covered disability. (Citation omitted.) (Bell v. Wells Fargo Bank (1998) 62 Cal.App.4th 1382, 1386.) Here, as discussed above re: the first cause of action, because Plaintiff sufficiently pleads that she was regarded at least as temporarily disabled, a jury could find that terminating Plaintiff before she returned from leave (2AC, ¶ 19) was a failure to accommodate that disability.
The demurrer to the third cause of action is OVERRULED.
4. Fourth Cause of Action (Failure To Engage In Good Faith Interactive Process—Gov. Code § 12940 et seq.).
Defendant argues that Plaintiff has not pled an underlying disability.
Under FEHA, it is an unlawful practice for an employer
to fail to engage in a good faith interactive process with the employee to determine
an effective reasonable accommodation if an employee with a known physical disability
requests one. (Citations omitted.)
(Brown v. L.A. Unified Sch. Dist. (2021) 60 Cal.App.5th 1092, 1109.)
Here, as discussed above re: the first cause of action, because Plaintiff sufficiently pleads that she was regarded at least as temporarily disabled, a jury could find that terminating Plaintiff before she returned from leave (2AC, ¶ 19) was a failure to engage in a good faith interactive process.
The demurrer to the fourth cause of action is OVERRULED.
Defendant is ordered to answer the Second Amended Complaint within 10 days.