Judge: Craig Griffin, Case: Chaves v. Realty Services Corp, Date: 2022-10-24 Tentative Ruling
Before the Court is Defendant Realty Services Corp.’s (“Defendant”) Demurrer to Plaintiff Lucia Chaves’ (“Plaintiff”) Second Amended Complaint (“SAC”).
For the reasons set forth below, the demurrers to the first, second, fourth and fifth causes of action are OVERRULED. The demurrer to the third cause of action is SUSTAINED without leave to amend.
Defendant is to file an answer to the SAC within 15 days.
Defendant’s request for judicial notice is granted as to the existence of and legal effects of the records, but not as to the truth of any disputed facts asserted therein. (Ev. Code §452(d); Fontenot v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 264; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)
As a preliminary matter, the Court notes that Defendant failed to file proof of service of the motion and the reply. (CRC 3.1300(c)). Plaintiff opposed the motion on the merits and thus waived these defects. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) Therefore, the Court will proceed with the merits, but Defendant is admonished to file proof of service for all future motions.
The Court finds the sham pleading doctrine to be inapplicable to the present matter as the Court finds the allegations in the SAC are not inconsistent with the allegations in the prior pleadings. (Lockton v. O’Rourke (2010) 184 Cal.App.4th 1051, 1061 [discussion of sham pleading doctrine].) Defendant inaccurately states that Plaintiff alleges that she tested positive for COVID-19. The SAC does not so allege. It only states that Plaintiff is informed and believes she contracted the virus. Said allegation is not in contradiction to the allegations in the FAC. Rather, the allegation appears consistent with Plaintiff’s prior allegation that despite the negative test result, she was having symptoms consistent with the virus. Further, Plaintiff cannot be said to be “changing her story” because she included the allegation that she reported her negative test result to her employer in all pleadings. In addition, as Plaintiff notes, having a negative test result does not mean that Plaintiff had never contracted COVID-19; it simply means, assuming an accurate test, she did not have the virus as of the test date.
The elements of a FEHA disability discrimination claim are: (1) plaintiff suffered from a disability or was regarded as suffering from a disability; (2) she could perform the essential duties of the job with or without reasonable accommodations; and (3) she was subjected to an adverse employment action because of the disability or perceived disability. (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159-160.)
The Court finds the allegations in the SAC now sufficiently allege a prima facie case of disability discrimination. Plaintiff alleges that she suffered from a disability under FEHA [symptoms of COVID-19 that impaired major life activities]; that she could perform the essential duties of the job with reasonable accommodations; and that she was subjected to an adverse employment action [termination] because of the disability. (SAC ¶¶ 11, 13-14, 16-18, 20, 35; Wills v. Superior Court, supra, 195 Cal.App.4th at 159-160; Gov. Code §§ 12940(a) and 12926(m)(1); see also, Blank v. Kirwan (1985) 39 Cal. 3d 311, 318—in reviewing the sufficiency of a complaint against a general demurrer, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.)
In addition, contrary to Defendant’s contentions, the SAC also alleges circumstances suggesting discriminatory motive. Specifically, Plaintiff alleges that she was the only person laid off and that shortly after her termination Defendant advertised her former job position. (SAC ¶¶ 16-17.)
Therefore, the demurrer to the first cause of action is OVERRULED.
Under the FEHA, an employer's failure to make reasonable accommodation for the known physical or mental disability of an applicant or employee is an unlawful employment practice. (Gov. Code § 12940(m).)
The elements of a failure to accommodate claim under Section 12940(m) are (1) the plaintiff has a disability covered by 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. (Swanson v. Morongo Unified School District (2014) 232 Cal.App.4th 954, 969.)
The allegations in the SAC now appear sufficient to allege a prima facie case of failure to accommodate in violation of FEHA. As stated above, the SAC adequately alleges a disability under FEHA and also alleges that with accommodations Plaintiff was qualified to perform her job functions. The SAC further alleges that Defendant knew that Plaintiff would need to be accommodated by being given additional time to catch up on the work that she fell behind on while she was ill, but that Defendant failed to give such accommodation. (SAC ¶¶ 18-19.) The Court finds these allegations to be sufficient at the pleading stage.
Therefore, the demurrer to the second cause of action is OVERRULED.
Although the caption of the SAC lists this cause of action as retaliation in violation of FEHA, the third cause of action as alleged in the body of the SAC is actually for retaliation in violation of the CFRA. (See SAC at pp. 8:7-9:17.) There are no allegations in this cause of action regarding FEHA. The third cause of action in the SAC is identical to the cause of action for retaliation in violation of the CFRA contained in the First Amended Complaint and to which the Court previously sustained a demurrer without leave to amend. (ROA 52.) Accordingly, the Court again SUSTAINS the demurrer to this cause of action without leave to amend.
When a plaintiff seeks to recover damages based on a claim of failure to prevent discrimination pursuant to Section 12940(k), she must show three essential elements: (1) the plaintiff was subjected to discrimination, harassment, or retaliation; (2) the defendant failed to take all reasonable steps to prevent discrimination, harassment, or retaliation; and (3) this failure caused the plaintiff to suffer injury, damage, loss, or harm. (Goins v. County of Merced (2016) 185 F.Supp.3d 1224, 1234.)
Here, as discussed above, Plaintiff has adequately alleged a claim for disability discrimination. Plaintiff also pleads that Defendant failed to take all steps necessary to prevent discrimination from occurring and that this failure caused her to suffer damages. (SAC ¶¶ 51-54.) Accordingly, this claim is well-pled. Therefore, the demurrer to the fourth cause of action is OVERRULED.
Plaintiff’s wrongful termination claim is derivative of her FEHA claims. (SAC ¶¶ 58-60; see also, Arteaga v. Brink’s, Inc. (2008) 163 Cal.App.4th 327, 355.) Because Plaintiff has alleged a viable cause of action for disability discrimination under FEHA, her wrongful termination claim also survives. Accordingly, the Court OVERRULES the demurrer to the fifth cause of action.
Plaintiff to give notice.