Judge Daniel M. Crowley, Case Number: 22STCV36293, Date: 2023-06-29 Tentative Ruling

Defendant Carlton Forge Works’ demurrer to the 1st, 2nd, 3rd, and 4th causes of action in Plaintiffs Alfredo Contreras Sierra’s and Carlos Nava Vega’s complaint is sustained as to the 1st, 2nd, 3rd and 4^th causes of action with 20 days leave to amend.

Defendant Carlton Forge Works (“Carlton”) (“Defendant”)[1] demurs to the 1st, 2nd, 3rd, and 4th causes of action in Plaintiffs Alfredo Contreras Sierra’s (“Sierra”) and Carlos Nava Vega’s (“Vega”) (collectively, “Plaintiffs”) complaint (“Complaint”). (Notice of Demurrer, pg. 2.)

Plaintiffs’ June 7, 2023, request for judicial notice of the Complaint in the instant matter is denied, as the Court does not need to take judicial notice of filings in the instant matter.

On November 16, 2022, Plaintiffs filed the operative Complaint alleging four causes of action against Defendants: (1) discrimination in violation of Gov. Code §§12940 et seq.; (2) failure to prevent discrimination in violation of Gov. Code §12940(k); (3) declaratory judgment; and (4) wrongful termination in violation of public policy arising from Plaintiffs’ employment by Defendant until the alleged terminations of Plaintiffs’ employment. (See Complaint ¶¶19, 21, 24, 26.)

On January 9, 2023, Defendant filed the instant demurrer. On June 7, 2023, Plaintiffs filed their opposition. On June 22, 2023, Defendant filed its reply.

Plaintiffs allege on or about August 1993, Defendants hired Plaintiff Sierra to work as a liftman. (Complaint ¶19.) Plaintiffs allege Plaintiff Sierra was a full-time, non-exempt employee, and performed all of his job duties satisfactorily before he was wrongfully terminated on or about June 30, 2020. (Complaint ¶19.) Plaintiffs allege at the time of Plaintiff Sierra’s termination he was 60 years old. (Complaint ¶20.) Plaintiffs allege on or about June 30, 2020, after 27 years of working for Defendants, Plaintiff Sierra was called into the office by his supervisor and was told he was terminated. (Complaint ¶21.) Plaintiff Sierra alleges on information and belief that he was terminated due to his age. (Complaint ¶22.) Plaintiff Sierra alleges on information and belief that Defendants only fired older employees and kept newer, younger, and less experienced employees. (Complaint ¶23.)

Plaintiffs allege on or about 2003, Defendants hired Plaintiff Vega to work as a general laborer. (Complaint ¶24.) Plaintiffs allege Plaintiff Vega was a full-time, non-exempt employee, and performed all of his job duties satisfactorily before he was wrongfully terminated on or about August 1, 2020. (Complaint ¶24.) Plaintiffs allege at the time of Plaintiff Vega’s termination he was 56 years old. (Complaint ¶25.) Plaintiffs allege on or about August 1, 2020, after 17 years of working for Defendants, Plaintiff Vega was wrongfully terminated. (Complaint ¶26.) Plaintiff Vega alleges on information and belief that the was terminated due to his age. (Complaint ¶27.) Plaintiff Vega alleges on information and belief that Defendants only fired older employees and kept newer, younger, and less experienced employees. (Complaint ¶28.)

Plaintiffs allege Defendants discriminated and retaliated against Plaintiffs due solely to Plaintiffs’ age. (Complaint ¶29.) Plaintiffs allege their termination was substantially motivated by Plaintiffs’ age and Defendants’ discriminatory animus is evidenced by the previously mentioned facts. (Complaint ¶30.)

Plaintiffs allege as a result of Defendants’ actions, Plaintiffs have suffered and will continue to suffer general and special damages, including severe and profound pain and emotional distress, anxiety, depression, headaches, tension, and other physical ailments, as well as medical expenses, expenses for psychological counseling and treatment, and past and future lost wages and benefits. (Complaint ¶32.) Plaintiffs allege as a result of the above, Plaintiffs are entitled to past and future lost wages, bonuses, commissions, benefits and loss or diminution of earning capacity. (Complaint ¶33.) Plaintiffs allege they claim general damages for emotional and mental distress and aggravation in a sum in excess of the jurisdictional minimum of this Court. (Complaint ¶34.) Plaintiffs allege because the acts taken toward Plaintiffs were carried out by officers, directors and/or managing agents acting in a deliberate, cold, callous, cruel, and intentional manner, in conscious disregard of Plaintiffs’ rights and in order to injure and damage Plaintiffs, Plaintiffs request that punitive damages be levied against Defendants and each of them, in sums in excess of the jurisdictional minimum of this Court. (Complaint ¶35.)

A demurrer is a pleading used to test the legal sufficiency of other pleadings, i.e., it raises issues of law, not fact, regarding the form or content of the opposing party’s pleading (complaint, petition, answer, or cross-complaint). (C.C.P. §§422.10, 589; see Donabedian v. Mercury Insurance Co. (2004) 116 Cal.App.4th 968, 994 [citing text]; Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388 [citing text].)

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. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian, 116 Cal.App.4th at pg. 994 [citing text].)

Defendant demurs to Plaintiff’s 1st, 2nd, 3rd, and 4th causes of action because they fail to state facts sufficient to constitute causes of action. (C.C.P. §430.10(e).)

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

Plaintiffs allege at the time their termination, Plaintiffs were over the age of 40, and they allege on information and belief that Plaintiffs’ ages, being over 40, was a motivating factor in Defendants’ decision to terminate Plaintiffs’ employment. (Complaint ¶¶20-23, 25-30, 43.) Plaintiffs allege at all relevant times hereto, Plaintiffs were performing competently in the position

Plaintiffs held with Defendants. (Complaint ¶41.) Plaintiffs allege Plaintiffs allege as a result of Defendants’ actions, Plaintiffs have suffered and will continue to suffer general and special damages, including severe and profound pain and emotional distress, anxiety, depression, headaches, tension, and other physical ailments, as well as medical expenses, expenses for psychological counseling and treatment, and past and future lost wages and benefits. (Complaint ¶32.) Plaintiffs allege as a result of the above, Plaintiffs are entitled to past and future lost wages, bonuses, commissions, benefits and loss or diminution of earning capacity. (Complaint ¶33.) Plaintiffs allege they claim general damages for emotional and mental distress and aggravation in a sum in excess of the jurisdictional minimum of this Court. (Complaint ¶34.) Plaintiffs allege because the acts taken toward Plaintiffs were carried out by officers, directors and/or managing agents acting in a deliberate, cold, callous, cruel, and intentional manner, in conscious disregard of Plaintiffs’ rights and in order to injure and damage Plaintiffs, Plaintiffs request that punitive damages be levied against Defendants and each of them, in sums in excess of the jurisdictional minimum of this Court. (Complaint ¶35.)

Plaintiffs fail to allege they suffered the adverse action under circumstances that give rise to an inference of unlawful discrimination, i.e., evidence that plaintiffs were replaced by someone significantly younger than Plaintiffs. Plaintiffs allege on information and belief that Defendants only fired older employees and kept the newer, younger, and less experienced employees. (Complaint ¶¶23, 28.) However, there are no facts to support the claim that Defendant harbored any discriminatory animus against Plaintiffs based on age.

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action is sustained with 20 days leave to amend.

Failure to Prevent Discrimination in Violation of Gov. Code §12940(k) (2nd COA)

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

For a private Plaintiff to establish an actionable claim under FEHA, the private Plaintiff must also plead and prevail on the underlying claim of discrimination, harassment, or retaliation. (2 C.C.R. §11023(a)(2); Trujillo v. North County Transit District (1998) 63 Cal.App.4th 280, 289 [“[T]here’s no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen, for not having a policy to prevent discrimination when no discrimination occurred . . ..”].) Because Plaintiffs failed to allege a cause of action for discrimination under FEHA, their derivative cause of action for failure to prevent discrimination also fails.

Accordingly, Defendant’s demurrer to Plaintiffs’ 2nd cause of action is sustained with 20 days leave to amend.

Any person claiming rights with respect to property, a contract, or a written instrument (other than a will or trust) may bring an action for a declaration of the party’s rights or duties with respect to another. The action may be brought before any breach occurs of the obligation regarding which the declaration of rights is sought. (C.C.P. §1060; Market Lofts Community Association v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931.) However, such declaratory relief requires the existence of an actual, present controversy between the parties over a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)

“A party seeking declaratory relief must show a very significant possibility of future harm.” (Monterey Coastkeeper v. Central Coast Regional Water Quality Control Board (2022) 76 Cal.App.5th 1, 13.) “Declaratory relief [serves] to set controversies at rest before . . . wrongs are committed. Thus, the remedy is to be used to advance preventative justice, to declare rather than execute rights.” (Id.; Kirkwood v. California State Automobile Association Inter-Insurance Bureau (2011) 193 Cal.App.4th 49, 59.) “In essence, declaratory relief operates to declare future rights, not to address past wrongs.” (Id.; Canova v. Trustees of Imperial Irrigation District Employee Pension Plan (2007) 150 Cal.App.4th 1487, 1497.)

Plaintiffs allege an actual controversy has arisen and now exists between Plaintiffs and Defendants concerning their respective rights and duties as it is believed that Defendants may allege that they did not discriminate against Plaintiffs; that Plaintiffs were not terminated as a result of Plaintiffs’ ages. Plaintiffs are informed and believe, and on that basis allege, that Defendants shall dispute Plaintiffs’ contentions. (Complaint ¶58.) Plaintiffs allege pursuant to C.C.P. §1060, Plaintiffs seeks a judicial determination of Plaintiffs’ rights and duties, and a declaration that Plaintiffs’ age, engagement in protected activities, and/or some combination of these protected characteristics was a substantial motivating factor in the decision to subject Plaintiffs to the aforementioned adverse employment actions. (Complaint ¶59.)

Plaintiffs allege a judicial declaration is necessary and appropriate at this time under the circumstances in order that Plaintiffs, for Plaintiffs and on behalf of employees in the State of California and in conformity with the public policy of the State, obtain a judicial declaration of the wrongdoing of Defendants and to condemn such discriminatory employment policies or practices prospectively. (Complaint ¶60; Harris v. City of Santa Monica (2013) 56 Cal.4th 203.) Plaintiffs allege a judicial declaration is necessary and appropriate at this time such that Defendants may also be aware of their obligations under the law to not engage in discriminatory practices and to not violate the law in the future. (Complaint ¶61.) Plaintiffs allege Government Code §12965(b) provides that an aggrieved party, such as the Plaintiffs herein, may be awarded reasonable attorneys’ fees and costs: “In civil actions brought under this section, the court, in its discretion, may award to the prevailing party, including the department, reasonable attorneys’ fees and costs, including expert witness fees,” and such fees and costs expended by an aggrieved party may be awarded for the purpose of redressing, preventing, or deterring discrimination. (Complaint ¶62.)

Plaintiffs’ cause of action for declaratory relief fails because it is a derivative claim of their 1st cause of action for discrimination under FEHA. Further, Plaintiffs admit they are former employees of Defendant and do not demonstrate a risk of suffering further harm from Defendants; therefore, Defendants fail to allege an actual, current controversy.

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action is sustained with 20 days leave to amend.

“The elements of a claim for wrongful discharge in violation of public policy are (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.)

Plaintiffs allege at all times mentioned in their Complaint, it was a fundamental policy of the State of California that Defendants cannot discriminate and/or retaliate against any employee on the basis of age, and/or engagement in protected activity. (Complaint ¶65.) Plaintiffs allege on information and belief that Plaintiffs’ age and engagement in protected activity with respect to these protected classes, and/or some combination thereof, were factors in Defendants’ conduct as alleged hereinabove. (Complaint ¶66.) Plaintiffs allege such discrimination, resulting in the wrongful termination of Plaintiffs’ employment on the basis of age was a proximate cause in Plaintiffs’ damages. (Complaint ¶67.)

Plaintiffs’ cause of action for wrongful termination is derivative of the 1st cause of action for discrimination in violation of FEHA.

Accordingly, Defendant’s demurrer to Plaintiff’s 4th cause of action is sustained with 20 days leave to amend.

Defendant’s demurrer to Plaintiffs’ Complaint is sustained as to the 1st, 2nd, 3rd, and 4th causes of action with 20 days leave to amend.

[1] Defendant Precision Castparts Corp. filed the initial motion along with Defendant Carlton Forge Works. On May 31, 2023, Defendant Precision Castparts Corp. was dismissed from this action without prejudice.