Judge: Christopher K. Lui, Case: 24STCV16156, Date: 2025-01-15 Tentative Ruling
Case Number: 24STCV16156 Hearing Date: January 15, 2025 Dept: 76
The following
tentative ruling is issued pursuant to Rule of Court 3.1308 at 2:24 PM on January 14,
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 January 14,
2025.
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, the Court may not entertain oral argument if notice of intention to appear is not given.
Plaintiff alleges that he was terminated due to his physical disability and requests for accommodation (injuries from a car accident).
Defendants Dacon Systems, Inc. and Victor Wire & Cable, Inc. demur to the First Amended Complaint and move to strike portions thereof.
TENTATIVE RULING
Defendant Victor Wire & Cable, Inc.’s demurrer to the entire 1AC is OVERRULED.
Defendants Dacon Systems, Inc. and Victor Wire & Cable, Inc.’s demurrer to the First Amended Complaint is OVERRULED as to the first through eighth causes of action.
Defendants’ motion to strike is DENIED as to the punitive damage allegations at Page 7, ¶ 33; Page 9, ¶ 48; Page 10, ¶ 60; Page 11, ¶ 66; Page 13, ¶ 76; Page 14, ¶ 84; Page 16, ¶ 92; Page 20, ¶ 112; Page 20, Prayer for Relief item #5.
Defendants are ordered to answer the First Amended Complaint within 10 days.
ANALYSIS
Demurrer
Request For Judicial Notice
Defendants request that the Court take judicial notice of the following:
1. Statement
of Designation by Foreign Corporation filed by Victor Wire & Cable, Inc. on
January 3, 2022 with the Secretary of State of California, and retrieved from
and retrievable through the Secretary of State web portal at
bizfileonline.sos.ca.gov/search/business.
2. California
Secretary of State’s page regarding Victor Wire & Cable, Inc (4831646) that
shows an initial filing date of January 3, 2022.
3. That Victor Wire & Cable, Inc. was not formed in the State of California until January 3, 2022.
Requests Nos. 1 – 3 are GRANTED. The Court may take judicial notice of a business entity’s corporate status as reflected in the Secretary of State’s records. (Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1286; Pedus Bldg. Servs. v. Allen (2002) 96 Cal.App.4th 152, 156 n.2.)
Meet and Confer
The Declaration of Evan Cote reflects that Defendants’ counsel satisfied the meet and confer requirement set forth in Civ. Proc. Code, § 430.41.
Discussion
Defendants Dacon Systems, Inc. and Victor Wire & Cable, Inc. demur to the 1AC as follows:
1. Entire First Amended Complaint.
Defendants argue that Defendant Victor Wire & Cable, Inc. was not initiated until January 3, 2022 and did not exist prior to the purported improper conduct.
However, it is possible that Victor Wire & Cable, Inc. became Plaintiff’s joint employer, as alleged in ¶ 7 of the 1AC before Plaintiff was terminated on August 18, 2022—8 months after Defendant Victor Wire & Cable, Inc. was initiated in January 3, 2022. This presents a question of fact outside the scope of this demurrer. This ground for demurrer is not successful.
Defendant Victor Wire & Cable, Inc.’s demurrer to the entire 1AC is OVERRULED.
2. First Cause of Action (Discrimination in Violation of Gov. Code, § 12940).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that it is unclear on what basis Plaintiff claims discrimination.
FEHA makes it unlawful to take adverse action toward an employee
“because of” his or her membership in a protected classification. (Gov. Code, §
12940, subd. (a); see Heard v. Lockheed Missiles & Space Co. (1996) 44
Cal.App.4th 1735, 1748 [52 Cal. Rptr. 2d 620] [“An employer will be liable for
intentional discrimination if it is shown that its employment decision was
premised upon an illegitimate criterion.”], citation omitted.) A claim
asserting a violation of this provision is a “disparate treatment” claim. We
have previously identified the elements of such a claim as “(1) the employee's
membership in a classification protected by the statute; (2) discriminatory
animus on the part of the employer toward members of that classification; (3)
an action by the employer adverse to the employee's interests; (4) a causal
link between the discriminatory animus and the adverse action; (5) damage to
the employee; and (6) a causal link between the adverse action and the damage.”
(Mamou, supra, 165 Cal.App.4th 686, 713.)
(McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947, 979.)
However, ¶¶ 37 and 38 allege that he was discriminated against on the basis of his age and disability/medical condition. .) “The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff's allegations must be accepted as true for the purpose of ruling on the demurrer. (Citation omitted.) Furthermore, plaintiff's possible inability or difficulty in proving the allegations of the complaint is of no concern. (Citation omitted.)” (Kerivan v. Title Ins. & Trust Co. (1983) 147 Cal.App.3d 225, 229.)
This cause of action is sufficiently pled. The demurrer to the first cause of action is OVERRULED.
3. Second Cause of Action (Retaliation in Violation of Gov. Code, § 12940.)
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that it is unclear on what basis Plaintiff claims retaliation.
The FEHA makes it unlawful for an employer to retaliate against an
employee who has opposed any discriminatory action (the “opposition” clause) or
who has filed a complaint, testified, or assisted in a FEHA proceeding (the
“participation” clause). (Gov. Code, § 12940, subd. (h).)
(George v. California Unemployment Ins. Appeals Bd. (2009) 179 Cal.App.4th 1475, 1489.)
However, the 1AC alleges at ¶ 53:
Plaintiff engaged in the protected activities of requesting accommodation, requesting medical leave, and complaining about and protesting Defendants’ discriminatory conduct towards Plaintiff based upon Plaintiffs age, disability, medical condition, real or perceived, and use of medical leave.
¶ 54 alleges, in part, that Plaintiff was terminated in retaliation. This cause of action is sufficiently pled. The demurrer to the second cause of action is OVERRULED.
4. Third Cause of Action (Failure to Prevent Discrimination and Retaliation in Violation of Gov. Code, § 12940(k).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that this cause of action fails because Plaintiff has failed to plead discrimination and retaliation.
A failure to prevent claim under FEHA requires that the actual discrimination, harassment or retaliation have actually occurred. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 925, fn. 4; Kelley v. The Conco Companies (2011) 196 Cal.App.4th 191, 208, superseded by statute on other grounds as stated in Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1239; Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1021; Thompson v. City of Monrovia (2010) 186 Cal.App.4th 860, 880,)
Because the first and second causes of action remain viable, so too does the third cause of action. The demurrer to the third cause of action is OVERRULED.
5. Fourth Cause of Action (Retaliation in Violation of Gov. Code, § 12945.2).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that Plaintiff does not plead facts to support this cause of action.
Gov. Code, § 12945.2(k) provides:
(k) It shall be an unlawful employment practice for an
employer to refuse to hire, or to discharge, fine, suspend, expel, or
discriminate against, any individual because of any of the following:
(1) An individual’s exercise of the right to family
care and medical leave provided by subdivision (a).
(Gov. Code § 12945.2(k)(1).)
Here, the 1AC alleges that Defendants retaliated against Plaintiff for taking protected medical leave under the CFRA in the form of termination. (1AC, ¶¶ 71, 72.) This cause of action is sufficiently pled.
The demurrer to the fourth cause of action is OVERRULED.
6. Fifth Cause of Action (Failure to Provide Reasonable Accommodation in Violation of Gov. Code, § 12940).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that the elements of this cause of action are not clearly pled.
“The elements of a failure to accommodate claim are (1) the [*1010] plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff's disability. (Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1002-12.)
Here, the 1AC alleges at ¶¶ 20 – 24:
20. On or about December 19, 2021 Plaintiff was injured
when involved In a car accident. This injury limited his ability to perform the
major life activity of working, thus constituting a disability. Plaintiff
consulted with his medical provider who placed him on medical leave.
21. Plaintiff provided Defendants notice of his medical
leave including a copy of his doctor’s note and updated them each time his
medical leave was extended by providing medical documentation throughout his recovery,
Plaintiff diligently provided Defendants, specifically Supervisors Roberto
Smith and Joe Doe, with medical notes from his doctor documenting his need to
have his medical leave extended.
22. Thereafter on or about July 6, 2022 Plaintiffs physician
released him to return to work with temporary restrictions, specifically prohibiting
lifting more than 20 pounds. Plaintiff delivered the medical clearance and work
restrictions documentation to Defendants, namely to his supervisor Joe Doe, and
requested reasonable accommodation to resume his duties
23. Defendants allowed Plaintiff to work for a few hours
before his supervisor Joe Doe sent him home. Defendants indicated that
Plaintiff needed to see a company-approved physician before continuing to work.
Despite this directive, Defendants never arranged for such an appointment. Defendants
inaction and failure to follow through effectively barred Plaintiff from
returning to his job, despite his readiness and ability to work within his
medical restrictions and reasonable accommodation.
24. Shortly thereafter, on or about August 18, 2022, Defendants
wrongfully terminated Plaintiff’s employment, knowing it lacked good cause and for
stated reasons that were pretextual. The real reason for Plaintiffs termination
was his physical disability and request for reasonable accommodation
(1AC, ¶¶ 20 –
24.)
This is sufficient to plead the failure to accommodate Plaintiff’s request by simply terminating his employment instead of allowing him to work with restrictions.
The demurrer to the fifth cause of action is OVERRULED.
7. Sixth Cause of Action (Failure to Engage in a Good Faith Interactive Process in Violation of Gov. Code, § 12940).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that the elements of this cause of action are not factually pled.
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. (§ 12940, subd. (n); see § 12926.1, subd. (e); A.M. v. Albertsons, LLC (2009) 178 Cal.App.4th 455, 463 [100 Cal. Rptr. 3d 449] (Albertsons).) Failure to accommodate and failure to engage in the interactive process are separate, independent claims involving different proof of facts. The purpose of the interactive process is to determine what accommodations is required. Once a reasonable accommodation has been granted, then the employer has a duty to provide that reasonable accommodation. (Albertsons, at pp. 463–464.)
(Brown v. L.A. Unified Sch. Dist. (2021) 60 Cal.App.5th 1092, 1109.)
For the reasons discussed above re: the fifth cause of action, simply terminating Plaintiff without engaging in an interactive process regarding the requirement that Plaintiff see a company-approved physician would be a violation of the interactive process requirement of FEHA.
The demurrer to the sixth cause of action is OVERRULED.
8. Seventh Cause of Action (Declaratory Judgment).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that there are no facts pled upon which to base this cause of action.
However, in the context of the FEHA,
the above causes of action are sufficient to support a request for declaratory
relief:
[P]roof that an adverse employment decision was substantially motivated
by discrimination may warrant a judicial declaration of employer wrongdoing.
Declaratory relief, where appropriate, may serve to reaffirm the plaintiff's
equal standing among her coworkers and community, and to condemn discriminatory
employment policies or practices. (See Code Civ. Proc., § 1060 [a court may
make a binding declaration of contested rights and duties].)
(Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 234.)
The demurrer to the eighth cause of action is OVERRULED.
9. Eighth Cause of Action (Wrongful Termination).
Defendants argue that this cause is only pled with conclusions, or facts which appear only inferentially, so as to be impermissibly vague and ambiguous. Defendants argue that there are no facts pled upon which to base this cause of action.
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].)
Because Plaintiff’s FEHA causes of
action based on his termination remain viable, so too does his cause of action
for wrongful termination.
Motion To Strike
Meet and Confer
Discussion
Defendants Dacon Systems, Inc. and Victor Wire & Cable, Inc. move to strike portions of the 1AC as follows:
¿ Punitive damage allegations at Page 7, ¶ 33; Page 9, ¶ 48; Page 10, ¶ 60; Page 11, ¶ 66; Page 13, ¶ 76; Page 14, ¶ 84; Page 16, ¶ 92; Page 20, ¶ 112; Page 20, Prayer for Relief item #5.
DENIED.
For the reasons discussed above re: the demurrer, all causes of action remain viable, and there are sufficient facts to support allegations of malice, i.e., “conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civ. Code, § 3294(c)(1).) Plaintiff is entitled to conduct discovery as to the identity of the person(s) who made the decision to effectively terminate Plaintiff’s employment.
Defendants are ordered to answer the First Amended Complaint within 10 days.