Judge Daniel M. Crowley, Case Number: 22STCV25640, Date: 2023-08-28 Tentative Ruling

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Defendants Turner’s Operations, Inc. and Turner’s Outdoors Inc. (collectively, “Defendants”) demur to the 1st through 4th causes of action in Plaintiff Kaden Sanchez’s (“Sanchez”) (“Plaintiff”) second amended complaint (“SAC”). (Notice of Demurrer, pg. 2; C.C.P. §§430.10(e), (f).)

Before filing a demurrer, the moving party must meet and confer in person or by telephone with the party who filed the pleading to attempt to reach an agreement that would resolve the objections to the pleading and obviate the need for filing the demurrer. (C.C.P. §430.41.)

Plaintiff filed his initial Complaint on August 9, 2022. On March 10, 2023, the Hon. Randolph M. Hammock, in Department 49, sustained Defendants’ demurrer to Plaintiff’s Complaint, granting leave to amend as to the 1st, 2nd, 5th, and 7th causes of action and denying leave to amend as to the 3rd, 4th, and 6th causes of action. Plaintiff filed his first amended complaint (“FAC”) on April 7, 2023, against Defendants alleging four causes of action: (1) disability discrimination (Gov. Code §12940(a)); (2) failure to take all reasonable steps to prevent discrimination (Gov. Code §12940(k)); (3) wrongful termination in violation of public policy; and (4) unfair business practices (Bus. & Prof. Code §17200).

On July 17, 2023, Defendants filed their notice of related case, Case No. 21STCV38742, Sanchez v. Turner’s Operations, Inc., et al. (7/17/23 Notice of Related Case.) On August 2, 2023, this Court found the instant case and Case No. 21STCV38742 are related within the meaning of CRC, Rule 3.300(a), with the instant case as the lead case. As such, the cases were assigned to this Court. (8/2/23 Minute Order.)

On August 28, 2023, this Court sustained Defendants’ demurrer as to the 1st, 2nd, 3rd, and 4th causes of action with 20 days leave to amend. (8/28/23 Minute Order.) On September 18, 2023, Plaintiff filed the operative second amended complaint (“SAC”) alleging the same four causes of action as the FAC. Plaintiff’s causes of action stem from his employment by Defendants as an hourly, non-exempt employee from approximately November 10, 2017, through May 19, 2020. (SAC ¶9.)

Defendants filed the instant demurrer on October 26, 2023. Plaintiff filed his opposition on November 6, 2023. Defendants filed their reply on November 13, 2023.

Defendants demur on the basis that Plaintiff’s 1st through 4th causes of action fail to state facts sufficient to constitute causes of action against Defendants and are uncertain. (Demurrer, pg. 3; C.C.P. §§430.10(e), (f).)

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (See Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents].) For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. (Aubry v. Tri-City Hospital District (1992) 2 Cal.4th 962, 967.)

“[T]he plaintiff initially has the burden to establish a prima facie case of discrimination. The plaintiff can meet this burden by presenting evidence that demonstrates, even circumstantially or by inference, that he or she (1) suffered from a disability, or was regarded as suffering from a disability; (2) could perform the essential duties of the job with or without reasonable accommodations, and (3) was subjected to an adverse employment action because of the disability or perceived disability. To establish a prima facie case, a plaintiff must show ‘actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such actions were based on a [prohibited] discriminatory criterion . . . .’ The prima facie burden is light; the evidence necessary to sustain the burden is minimal. As noted above, while the elements of a plaintiff’s prima facie case can vary considerably, generally an employee need only offer sufficient circumstantial evidence to give rise to a reasonable inference of discrimination.” (Sandell v. Taylor-Listug, Inc. (2010) 188 Cal.App.4th 297, 310, internal citations omitted.)

The burden for establishing an employee had or was regarded as having a disability is “not onerous” and the evidence necessary is minimal. (See Wills v. Superior Court (2011) 195 Cal.App.4th 143, 159 [describing the burden of establishing a prima facie case of disability discrimination].) This evidence can be circumstantial or demonstrated by inference. (Sandell, 188 Cal.App.4th at pg. 310.)

Plaintiff alleges on or about March 19, 2020, the County of Los Angeles Department of Public Health issued an Order directed to stop the spread of Coronavirus which required all non-essential retail businesses to temporarily close. (SAC ¶11.) Plaintiff alleges he requested a leave of absence from Defendants due to high risk from the Coronavirus. (SAC ¶12.) Plaintiff alleges he has asthma and was prone to pneumonia and other illnesses increasing his risk of Coronavirus. (SAC ¶12.) Plaintiff alleges on information and belief that Defendants were aware of this condition based on prior requests for sick days through previous years of employment. (SAC ¶12.)

Plaintiff alleges Defendants granted Plaintiff leave from March 22, 2020, until April 11, 2020. (SAC ¶14.) Plaintiff alleges Defendants identified “Coronavirus High Risk” as the specific reason for his leave of absence. (SAC ¶14.) Plaintiff alleges on April 1, 2020, Plaintiff emailed Defendants’ Human Resources Manager, Kaitlin Staidl (“Staidl”), asking if he could extend his leave of absence if the Coronavirus pandemic became worse. (SAC ¶15.) Plaintiff alleges on April 9, 2020, Staidl responded that Defendants could offer two additional weeks of a Personal Leave of Absence, noting that such leaves were not job protected. (SAC ¶16.) Plaintiff alleges he was set to return to work on May 4, 2020. (SAC ¶16.)

Plaintiff alleges on or about April 10, 2020, the County of Los Angeles Department of Public Health issued a Revised Order which continued the temporary closure of non-essential businesses through May 15, 2020. (SAC ¶17.) Plaintiff alleges on April 16, 2020, he notified Staidl that he had taken an antibody test which came back positive, asking what he needed to do about work. (SAC ¶18.) Plaintiff alleges Staidl replied that they would need to wait for a further test result, and that if he tested positive, they would “gather a timeline of two weeks and figure out an estimated return date from there.” (SAC ¶18.)

Plaintiff alleges on April 23, 2020, he notified Staidl that he didn’t have test results yet, but that his sister and grandmother tested positive, and that he had been in constant contact with them because he takes care of them. (SAC ¶19.) Plaintiff alleges Staidl responded that he could still return to work as planned as long as he didn’t show any symptoms. (SAC ¶19.)

Plaintiff alleges on April 27, 2020, Defendants agreed to extend Plaintiff’s leave of absence to May 15, 2020. (SAC ¶20.) Plaintiff alleges in early May of 2020, Plaintiff requested additional leave. (SAC ¶21.) Plaintiff alleges on May 11, 2020, Staidl informed Plaintiff that they were unable to approve any additional time off or leave, and that if he was not able to return to work on May 15, his employment would be terminated. (SAC ¶22.) Plaintiff alleges he reiterated his concerns about COVID and his ability to perform his job duties but nevertheless, Staidl did not offer any reassurances of safety measures or offer any other reasonable accommodations so that Plaintiff could continue to perform his job duties. (SAC ¶22.)

Plaintiff alleges on or about May 13, 2020, the County of Los Angeles issued a further revised order which allowed some non-essential retail businesses to reopen subject to certain conditions, including providing goods and services to the public via curbside, doorside, or other outdoor or outside pickup, or via delivery, as well as preparing and implementing reopening protocols. (SAC ¶23.) Plaintiff alleges on May 13, 2020, Staidl reiterated the position that if Plaintiff did not return to work on May 15, he would be terminated. (SAC ¶24.) Plaintiff alleges Staidl made no offer of any accommodation to Plaintiff, nor did she identify any safety precautions that would allow Plaintiff to adequately perform his job duties. (SAC ¶24.)

Plaintiff alleges Defendants denied Plaintiff’s requests for accommodations in the form of leave on May 11 and May 13, and furthermore refused to engage in an interactive process to identify and provide reasonable alternative accommodations to Plaintiff like socially distance workplace procedures, safety precautions, or other reasonable accommodations to allow Plaintiff to perform his job duties. (SAC ¶25.)

Plaintiff alleges on May 14, 2020, Staidl emailed Plaintiff indicating that “Turner’s is making a decision to separate employment because you are unable to return on our original return date of 5/15/2020.” (SAC ¶26.) Plaintiff alleges he was terminated effective May 19, 2020. (SAC ¶27.) Plaintiff alleges the reason for separation in his paperwork was identified as “Unable to return to work.” (SAC ¶27.)

Plaintiff alleges he would have been able to return to work had Defendants engaged in the interactive process or offered to make any reasonable accommodations that sufficiently mitigated his increased risk of severe death or illness from contracting Coronavirus due to his asthma. (SAC ¶27.) Plaintiff alleges Defendants had a legal obligation to engage in the interactive process and refused to follow their legal obligation, and instead terminated Plaintiff due to his disability. (SAC ¶27.) Plaintiff alleges therefore, Defendant’s termination of Plaintiff was substantially motivated by his having a disability. (SAC ¶27.)

Plaintiff alleges he was disabled for the purposes of the FEHA. Plaintiff had asthma, making him more susceptible to contracting COVID-19 and from becoming seriously ill from COVID-19. (SAC ¶30.) Plaintiff alleges this medical condition limited his ability to perform a major life activity, namely, his job. (SAC ¶30.) Plaintiff alleges he had a record or history of his disability that was known to Defendants, thus independently constituting a disability under Cal. Gov. Code section 12926(k)(3). (SAC ¶30.) Plaintiff alleges Defendants treated Plaintiff as though he had, or had had in the past, a condition making the achievement of a major life activity difficult; or it believed that, although his impairment might have had no disabling effect at the end of the leave period, or by some reasonable accommodation, that impairment might again worsen into a disability. (SAC ¶30.)

Plaintiff alleges he could perform his essential job duties with reasonable accommodations. (SAC ¶31.) Plaintiff alleges he was a sales associate whose job duties included but were not limited to checking out customers in Defendants stores as well as processing paperwork related to gun purchases. (SAC ¶31.) Plaintiff alleges reasonable accommodations that would have allowed Plaintiff to perform his essential job duties include, but are not limited to, implementing social distancing and mandating the use of protective face masks in Defendants’ stores, granting Plaintiff his request leave throughout the Coronavirus pandemic, allowing Plaintiff to process paperwork in a station away from other employees and customers, or instituting the curbside, outdoor, or delivery pickup services outlined in the May 13, 2020 order issues by the County of Los Angeles. (SAC ¶31; see Exh. 3.)

Plaintiff alleges Defendant refused Plaintiff’s requests for reasonable accommodations in the form of extended leave. (SAC ¶32.) Plaintiff alleges despite being aware of Plaintiff’s disability and requests for reasonable accommodations, Defendant failed to provide alternative accommodations or engage in any kind of interactive process with Plaintiff. (SAC ¶32.)

Plaintiff alleges Defendants failed to engage in any kind of interactive process with Plaintiff after he notified them that he could not return to work due to health concerns from his disability relating to the COVID-19 pandemic. (SAC ¶33.) Plaintiff alleges instead of attempting to accommodate Plaintiff’s disability in good faith, Defendants fired Plaintiff due to his disability. (SAC ¶33.) Plaintiff alleges Defendants’ termination of Plaintiff constitutes discrimination based on a disability and a violation of Government Code section 12940(a). (SAC ¶33.)

Plaintiff alleges as a direct, foreseeable and proximate result of Defendants’ unlawful actions, Plaintiff has suffered and continues to suffer substantial losses in earnings, equity and other employment benefits and has incurred other economic losses. (SAC ¶34.) Plaintiff alleges a further direct, foreseeable, and proximate result of Defendants’ unlawful actions, Plaintiff has suffered emotional distress, humiliation, shame, and embarrassment all to the Plaintiff’s damage in an amount to be proven at trial. (SAC ¶35.)

Plaintiff sufficiently alleges a prima facie case of disability discrimination. (Sandell, 188 Cal.App.4th at pg. 310.) Plaintiff sufficiently alleges he had or was regarded as having a disability. (SAC ¶¶12-14.) Plaintiff sufficiently amended his pleading to allege he could perform the essential duties of the job with or without reasonable accommodation. (SAC ¶31.)

A cause of action for failure to prevent discrimination requires a plaintiff to allege the following elements: (1) plaintiff was an employee of defendant; (2) plaintiff was subjected to discrimination in the course of employment; (3) defendant failed to take all reasonable steps to prevent the discrimination; (4) plaintiff was harmed; and (5) defendant’s failure to take all reasonable steps to prevent discrimination was a substantial factor in causing plaintiff’s harm. (CACI 2527.)

Plaintiff alleges Defendants, through Staidl, failed to engage in any kind of interactive process with Plaintiff in order to determine whether they could provide Plaintiff with reasonable accommodations, including but not limited to taking steps to reduce his exposure to the Coronavirus or other employees and customers as part of his regular job duties or providing additional leave. (SAC ¶39.) Plaintiff alleges Staidl’s failure to engage in any kind of interactive process with Plaintiff constitutes disability discrimination under Cal. Gov’t. Code section 12940(n). (SAC ¶39.) Plaintiff alleges Staidl’s failure to provide reasonable accommodations for Plaintiff’s known disability is a violation of Cal. Gov’t Code section 12940(m)(1). (SAC ¶39.)

Plaintiff alleges Defendants failed to take appropriate and/or reasonable steps to train and/or monitor its employees, supervisors and/or managers regarding disability discrimination and the obligation to engage in an interactive process by failing to enforce a policy against unlawful discrimination, and by failing to take prompt and appropriate disciplinary action against the perpetrators of discrimination, such as Staidl. (SAC ¶40.)

Plaintiff alleges Defendants failed to take all reasonable steps necessary to prevent discrimination from occurring in violation of Government Code section 12940(k). (SAC ¶41.) Plaintiff alleges Defendants’ failure to take reasonable steps necessary to prevent discrimination was a substantial factor in causing Plaintiff’s harm because by failing to train and/or monitor their employees on Defendants’ legal obligations, Defendants allowed Plaintiff to be discriminated against based on his disability by Defendants’ direct employees. (SAC ¶42.)

Plaintiff alleges as a direct, foreseeable, and proximate result of Defendants’ unlawful actions, Plaintiff has suffered substantial emotional distress, humiliation, shame and embarrassment, all to the Plaintiff’s damage in an amount to be proven at trial. (SAC ¶43.)

Plaintiff sufficiently alleges a cause of action for failure to prevent discrimination. Plaintiff sufficiently alleges that Defendants’ failure to take all reasonable steps to prevent discrimination was a substantial factor in causing Plaintiff’s harm. (See SAC ¶¶22-27, 39, 40-42.)

A cause of action for wrongful termination in violation of public policy requires the following elements: (1) an employer-employee relationship, (2) the employer terminated the plaintiff’s employment, (3) the termination was substantially motivated by a violation of public policy, and (4) the discharge caused the plaintiff harm.” (Garcia-Brower v. Premier Automotive Imports of CA, LLC (2020) 55 Cal.App.5th 961, 973, internal citation omitted.) “[T]he cases in which violations of public policy are found generally fall into four categories: (1) refusing to violate a statute; (2) performing a statutory obligation; (3) exercising a statutory right or privilege; and (4) reporting an alleged violation of a statute of public importance.” (Gantt v. Sentry Insurance (1992) 1 Cal.4th 1083 1090-1091.)

Plaintiff alleges he was considered to have a disability under the FEHA. (SAC ¶45.) Plaintiff alleges under Cal. Gov’t Code section 12940(m), Plaintiff was entitled to reasonable accommodations under the law and protected from retaliation or discrimination for requesting reasonable accommodations for his disability. (SAC ¶45.) Plaintiff alleges pursuant to Cal. Gov’t Code section 12940(n) Defendants were obligated to engage in an interactive timely, good faith, interactive process with Plaintiff to determine effective reasonable accommodations. (SAC ¶46.) Plaintiff alleges he exercised his statutory rights under the FEHA by requesting a reasonable accommodation in the form of extended leave to protect him from Coronavirus. (SAC ¶47.) Plaintiff alleges Defendants denied Plaintiff his request and thereafter refused to offer any alternative safety measures or workplace procedures which would allow Plaintiff to return to work. (SAC ¶47.) Plaintiff alleges Defendants’ termination of Plaintiff’s employment was substantially motivated by his exercising his statutory right to request reasonable accommodations for his disability under the FEHA, in violation of public policy. (SAC ¶48.)

Plaintiff alleges Defendants discharged Plaintiff in violation of the aforementioned public policies, under: (a) California Government Code §12940, et seq.; (b) California Government Code §12940(m); (c) California Government Code §12940(n); and (d) California Government Code § 12940(k). (SAC ¶46.)[1]

Plaintiff alleges as a proximate result of the conduct of Defendants, Plaintiff suffered and will continue to suffer damages in terms of lost wages, lost bonuses, lost benefits and other pecuniary loss according to proof. (SAC ¶47.)[2] Plaintiff alleges he has also suffered and will continue to suffer physical and emotional injuries, including nervousness, humiliation, depression, anguish, embarrassment, fright, shock, pain, discomfort, fatigue, and anxiety. The amount of Plaintiff’s damages will be ascertained at trial. (SAC ¶47.) Plaintiff alleges as a direct and proximate cause of his wrongful discharge, Plaintiff has suffered and will continue to suffer damages in an amount within the jurisdiction of this court, the exact amount to be proven at trial. (SAC ¶48.)[3]

Plaintiff sufficiently amended his pleading to allege the termination was substantially motivated by a violation of public policy. (SAC ¶¶47-48.) Plaintiff sufficiently alleges a cause of action for wrongful termination in violation of public policy.

Accordingly, Defendants’ demurrer to Plaintiff’s 3rd of action for wrongful termination in violation of public policy is overruled.

A cause of action for unfair business practices requires the following elements: (1) a business practice; (2) that is unfair, unlawful or fraudulent; and (3) authorized remedy. (Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 676; see also Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 337 [although losses are required for standing, “ineligibility for restitution is not a basis for denying standing under section 17204….”]; People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1016 [“An ‘unlawful’ practice requires violation of another statute, and a business practice may be ‘unfair’ even if not otherwise proscribed by statute as long as the practice is not expressly authorized by law.”].)

By proscribing “any unlawful” business act or practice, the UCL “borrows” rules set out in other laws and makes violations of those rules independently actionable. (Zhang v. Superior Court (2013) 57 Cal.4th 364, 370.) A “violation of another law is a predicate for stating a cause of action under the UCL’s unlawful prong.” (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) Plaintiff must allege a violation of law to support a UCL claim. If there is no violation of another law, defendant cannot be held liable for an “unlawful” business practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610 [demurrer to SAC which failed to allege violation of a law was properly sustained without leave to amend].)

Plaintiff alleges the foregoing conduct as alleged in this complaint violates the California Unfair Competition Law (“UCL”) (Cal. Bus. & Prof. Code § 17200 et seq.). (SAC ¶50.) Plaintiff alleges Section 17200 prohibits unfair competition by prohibiting, inter alia, any unlawful or unfair business acts or practices. (SAC ¶50.)

Plaintiff alleges throughout the course of Plaintiff’s employment, Defendants committed acts of unfair competition, as defined by the UCL, by among other things, engaging in the acts and practices described in this complaint, including but not limited to discriminating against him on the basis of his disability, retaliating against him for requesting reasonable accommodations for his disability, and failing to take reasonable steps to prevent such discrimination and retaliation from occurring. (SAC ¶51.) Plaintiff alleges Defendants’ conduct as alleged herein has damaged Plaintiff by wrongfully denying him earned wages and equity, and therefore was substantially injurious to the Plaintiff. (SAC ¶51.)

Plaintiff alleges Defendants’ course of conduct, acts and practices in violation of the California laws mentioned in the above paragraph constitute a separate and independent violation of the UCL. (SAC ¶52.) Plaintiff alleges Defendants’ conduct described herein violates the policy or spirit of such laws or otherwise significantly threatens or harms competition. (SAC ¶52.)

Plaintiff seeks disgorgement in the amount of the respective unpaid wages and equity and such other legal and equitable relief from Defendants unlawful and willful conduct as the Court deems just and proper. (SAC ¶53.)

Plaintiff sufficiently alleges a cause of action for violation of the UCL. (See SAC ¶51.)

Accordingly, Defendants’ demurrer to Plaintiff’s 4th of action for violation of the UCL is overruled.

A demurrer for uncertainty will be sustained only where the complaint is so bad that defendant cannot reasonably respond—i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against him or her.¿ (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)¿

If the complaint contains enough facts to apprise defendant of the issues it is being asked to meet, failure to label each cause of action is not ground for demurrer: “Although inconvenient, annoying and inconsiderate, the lack of labels . . . does not substantially impair [defendant’s] ability to understand the complaint.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 n.2.)¿

Where a demurrer is made upon this ground, it must distinctly specify exactly how or why the pleading is uncertain, and where such uncertainty appears (by reference to page and line numbers of the complaint).¿ (See Fenton v. Groveland Community Services District (1982) 135 Cal.App.3d 797, 809.)¿

Defendants fail to specify where the uncertainty appears by reference to page line and numbers in the complaint.¿ (See id.)¿ Further, the pleading is not so bad that Defendants cannot reasonably determine what issues must be admitted or denied, or what counts or claims are directed against them.¿ (Khoury, 14 Cal.App.4th 612, 616.)

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] This allegation is incorrectly numbered in the SAC as ¶46 and should be ¶50. Unfortunately, a different paragraph in the SAC is numbered ¶50. The Court notes there are two different allegations labeled ¶46 in the SAC.

[2] The Court notes this paragraph is erroneously numbered ¶47 for the second time in the SAC.

[3] The Court notes this paragraph is erroneously numbered ¶48 for the second time in the SAC.