Judge: Christopher K. Lui, Case: 24STCV07484, Date: 2024-08-14 Tentative Ruling

Case Number: 24STCV07484    Hearing Date: August 14, 2024    Dept: 76

             Plaintiff alleges that he complained to his employer about improper working conditions and the CEO began harassing and retaliating against Plaintiff, making age-related comments, then fabricating a reason to terminate Plaintiff.

Defendants CLT Computers, Inc., and Chang Wei Le demur to the Complaint.

TENTATIVE RULING 

Defendants CLT Computers, Inc., and Chang Wei Lee demurrer to the Complaint is OVERRULED as to the first, second, fifth and sixth causes of action and SUSTAINED with leave to amend as to the third and fourth causes of action. 

            Plaintiff is given 30 days’ leave to amend where indicated                                                                                                                       

ANALYSIS 

Demurrer To Complaint

Meet and Confer

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

Discussion

Defendants CLT Computers, Inc., and Chang Wei Lee demur to the Complaint as follows:

1.         First Cause of Action (Discrimination in Violation of Gov. Code, § 12940 et seq.).

            The first cause of action is based on age discrimination and engagement in protected activities. However, engaging in protected activities is addressed in a retaliation cause of action, and is not a protected class, like age. 

In order to make out a prima facie case of age discrimination under FEHA, a plaintiff must present evidence that the plaintiff (1) is over the age of 40; (2) suffered an adverse employment action; (3) was performing satisfactorily at the time of the adverse action; and (4) suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that the plaintiff was replaced by someone significantly younger than the plaintiff. (Hersant, supra, 57 Cal.App.4th at pp. 1002–1003.) n12

(Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 321.)

            Here, Plaintiff alleges that he suffered an adverse employment action in the form of termination. (Complaint, ¶¶ 20, 21.) Part of the alleged motivation was Plaintiff’s age. (Id.) Under the FEHA, prohibited discrimination must be more than simply “a” motivating factor, it must be a “substantial” motivating factor, but need not be a “but for” cause of the employment decision. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 232.)

The remarks allegedly made by Defendant Lee regarding Plaintiff being old and getting older are evidence of Defendant Lee’s state of mind toward Plaintiff and may be relevant as direct evidence of discrimination under a “totality of circumstances” analysis for the trier of fact to consider. (Husman v. Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1191-92.)

            The first cause of action for age discrimination is sufficiently pled. The demurrer to the first cause of action is OVERRULED.

2.         Second Cause of Action (Harassment in Violation of Gov. Code, § 12940 et seq.)

The elements are: (1) plaintiff belongs to a protected group; (2) plaintiff was subject to unwelcome [ ] harassment; (3) the harassment complained of was based on [the protected classification]; (4) the harassment complained of was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment; and (5) respondeat superior.

(Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 608.)

            Defendants argue that the phrase “old” or “getting older, not young” is not discriminatory or humiliating, but factual. This argument is not persuasive. The tone and intent are essential to determining the message sent by the alleged remarks made by Defendant Lee. (Complaint, ¶ 19.)

            Defendant Lee is alleged to be the Chief Executive Officer of Defendant CLT Computers. (Complaint, ¶ 4.)

[H]arassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment (whether verbal, physical, or visual) communicates an offensive message to the harassed employee.

. . .

Because a harasser need not exercise delegated power on behalf of the employer to communicate an offensive message, it does not matter for purposes of proving harassment whether the harasser is the president of the company or an entry-level clerk, although harassment by a high-level manager of an organization may be more injurious to the victim because of the prestige and authority that the manager enjoys. When the harasser is a supervisor, the employer is strictly liable for the supervisor’s actions. (State Dept. of Health Services v. Superior Court, supra, 31 Cal.4th at pp. 1040–1041.) When the harasser is a nonsupervisory employee, employer liability turns on a showing of negligence (that is, the employer knew or should have known of the harassment and failed to take appropriate corrective action). (§ 12940, subd. (j)(1).)

(Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706-707 [italics in original, bold emphasis added].)

(b) A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. In that regard, the Legislature hereby declares its rejection of the United States Court of Appeals for the 9th Circuit’s opinion in Brooks v. City of San Mateo (2000) 229 F.3d 917 and states that the opinion shall not be used in determining what kind of conduct is sufficiently severe or pervasive to constitute a violation of the California Fair Employment and Housing Act.

(c) The existence of a hostile work environment depends upon the totality of the circumstances and a discriminatory remark, even if not made directly in the context of an employment decision or uttered by a nondecisionmaker, may be relevant, circumstantial evidence of discrimination. In that regard, the Legislature affirms the decision in Reid v. Google, Inc. (2010) 50 Cal.4th 512 in its rejection of the “stray remarks doctrine

    (Gov. Code § 12923(b) & (c) [bold emphasis and underlining added].)

            Here, Plaintiff alleges that Lee’s harassment was such that a reasonable person would consider the work environment to be hostile or abusive. (Complaint, ¶¶ 45, 46.) Given Gov. Code, § 12923, even if Lee’s remarks were made to Plaintiff once, it is a question of fact for the jury to decide whether this was sufficient to constitute harassment for purposes of FEHA.

            The second action is adequately pled. The demurrer to the second cause of action is OVERRULED.

3.         Third Cause of Action (Retaliation in Violation of Gov. Code, § 12940 et seq.)

The FEHA protects employees against retaliation for filing a complaint or participating in proceedings or hearings under the act, or for opposing conduct made unlawful by the act. (Gov. Code, § 12940, subd. (h).) Specifically, section 12940, subdivision (h), declares that it is an unlawful employment practice for “any employer … 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.”

This enactment aids enforcement of the FEHA and promotes communication and informal dispute resolution in the workplace. (Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476–477 [4 Cal. Rptr. 2d 522].) Employees may establish a prima facie case of unlawful retaliation by showing that (1) they engaged in activities protected by the FEHA, (2) their employers subsequently took adverse employment action against them, and (3) there was a causal connection between the protected activity and the adverse employment action. (3 Cal.App.4th at p. 476.)

(Miller v. Department of Corrections (2005) 36 Cal.4th 446, 472.)

            Here, Plaintiff does not allege that he complained to Defendant or Lee about discrimination or harassment, but rather, Plaintiff alleges that he complained about improper working conditions and Defendants retaliated against him for those complaints. (Complaint, ¶¶ 18 – 21.) As such, this cause of action is not sufficiently pled.

            The demurrer to the third cause of action is SUSTAINED with leave to amend.

4.         Fourth Cause of Action (Retaliation in Violation of Labor Code, § 1102.5.)

            Plaintiff cites Labor Code, § 1102.5 (b) which states:

(b) An employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee’s job duties.

     (Lab Code § 1102.5 (b).)

            Plaintiff alleges, in part, that he suffered retaliation for his multiple reports of unsafe working conditions. (Complaint, ¶ 66.) Plaintiff allegedly was terminated in retaliation for such complaints. (Id., ¶ 67.) Although Plaintiff does not allege which statute, rule or regulation he reasonable believed was being violated, now that Plaintiff is represented by counsel, he must identify and plead which workplace health and safety statutes, rules or regulations were implicated.

            As such, the demurrer to the fourth cause of action is SUSTAINED with leave to amend.

5.         Fifth Cause of Action (Failure to Prevent Discrimination, Harassment, and Retaliation in Violation of Gov. Code, § 12940(k).)

A FEHA failure to prevent claim fails if the underlying FEHA violations also fail. (See, e.g., Featherstone v. Southern California Permanente Medical Group (2017) 10 Cal.App5th 1150, 1166.)

            Defendants argue that this cause of action fails because there is no underlying discrimination, harassment or retaliation. For the reasons discussed above, however, the discrimination and harassment causes of action are sufficiently pled, so this cause of action is adequately pled as well.

            The demurrer to the fifth cause of action is OVERRULED.

 6.        Sixth Cause of Action (Wrongful Termination in Violation of Public Policy).

            Defendants argue that this cause of action fails because the underlying FEHA claims fail.

To establish a claim for wrongful discharge in violation of public policy, a plaintiff must plead and prove (1) a termination or other adverse employment action; (2) the termination or other action was a violation of a fundamental public policy, as expressed in a constitutional, statutory, or regulatory provision; and (3) a nexus between the adverse action and the employee’s protected status or activity. (Yanowitz, supra, 36 Cal.4th at p. 1042.) FEHA’s policy prohibiting disability discrimination in employment is sufficiently substantial and fundamental to support a claim for wrongful termination in violation of public policy. (Citations omitted.)

(Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 660, superseded by statute on other grounds as stated in Cornell v. Berkeley Tennis Club (2017) 18 Cal.App.5th 908, 942 [bold emphasis added].)

            As discussed above, the FEHA discrimination claim based upon Plaintiff’s termination survives demurrer. As such, this cause of action is also adequately pled.

            The demurrer to the sixth cause of action is OVERRULED.

            Plaintiff is given 30 days’ leave to amend where indicated.