Judge Daniel M. Crowley, Case Number: 23STCV02746, Date: 2023-09-20 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendant Abco Technology, Inc. (“Abco”) (“Defendant”) demurs to Plaintiff Andy Wu’s (“Wu”) (“Plaintiff”) complaint (“Complaint”). (Notice of Demurrer, pgs. 1-2.)

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.)

Defendant’s counsel filed a declaration stating he met and conferred with Plaintiff’s counsel; however Defendant’s counsel does not state if parties met and conferred in person or by telephone. (Decl. of Hak ¶4.) Defendant’s counsel declares the parties were unable to come to an agreement as to all of the items in the demurrer. (See Decl. of Hak ¶5.) In his opposition, Plaintiff argues Defendant’s counsel fails to state that Defendant declined to respond to Plaintiff’s counsel’s ongoing meet and confer attempts. (Opposition, pgs. 4-5.) Defendant’s counsel’s declaration is insufficient per the requirements of C.C.P. §430.41(a). (C.C.P. §430.41(a).) However, a determination by the court that the meet and confer process was insufficient is not grounds to overrule a demurrer. (C.C.P. §430.41(b).) Therefore, the Court will consider the instant demurrer.

Plaintiff filed his operative Complaint against Defendant on February 8, 2023, alleging three causes of action: (1) violation of whistleblower protection pursuant to Labor Code §1102.5; (2) violation of Labor Code §§6310, 6311; and (3) wrongful termination in violation of public policy. Plaintiff’s causes of action stem from his employment by Defendant as a school administrator on or about May 23, 2022, until his termination on or about October 20, 2022. (Complaint ¶¶10,18.)

On March 14, 2023, Defendant filed the instant demurrer. Plaintiff filed his opposition on September 7, 2023. Defendant filed its reply on September 13, 2023.

Defendant demurs on the basis that Plaintiff’s 1st through 3rd causes of action fail to state facts sufficient to constitute causes of action against Defendant and are uncertain. (Demurrer, pgs. 3-4; C.C.P. §§430.10(e), (b)[1].)

“[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.)

A cause of action for retaliation under Labor Code §1102.5 requires the following elements: (1) defendant was plaintiff’s employer; (2) plaintiff disclosed or defendant believed that plaintiff had disclosed to a person with authority over plaintiff, or an employee with authority to investigate, discover, or correct legal violations or noncompliance; (3) plaintiff had reasonable cause to believe that the information disclosed a violation or noncompliance with a state/federal statute or a violation of/noncompliance with a local/state/federal rule or regulation; (4) defendant subjected plaintiff to an adverse employment action; (5) plaintiff’s disclosure of information was a contributing factor in defendant’s decision to subject plaintiff to the adverse employment action; (6) plaintiff was harmed; and (7) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (CACI 4603; see Lab. Code §1102.5.)

“Although [the plaintiff] did not expressly state in his disclosures that he believed the County was violating or not complying with a specific state or federal law, Labor Code section 1102.5, subdivision (b), does not require such an express statement. It requires only that an employee disclose information and that the employee reasonably believe the information discloses unlawful activity.” (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592-593; see CACI 4603.)

Plaintiff alleges on or about May 23, 2022, he began working for Defendant as a school administrator. (Complaint ¶10.) Plaintiff alleges throughout his employment, Defendant failed to maintain appropriate office temperatures, which rendered the work environment unsafe to be in. Indeed, temperatures would exceed 90 degrees Fahrenheit indoors. (Complaint ¶11.) Plaintiff alleges in or about August of 2022, he text messaged Arif Sayed (“Mr. Sayed”) that Hector (last name unknown), Defendant’s Admissions Representative, informed Plaintiff that it is “too hot to work” in the office and requested to work from home as an accommodation, to which Arif instructed Plaintiff to “not [] entertain such excuses . . . [w]e have worked in this office and they can sit next to the AC. Previously we didn’t even have this liberty because there were classes.” (Complaint ¶12.)

Plaintiff alleges he made several reports of unsafe working conditions to management. (Complaint ¶13.) Plaintiff alleges on or about September 7, 2022, Plaintiff slack messaged Mr. Sayed, Defendant’s Director, that “my temp gauge is reading 89 degrees with the AC blowing directly at my back, perhaps we can consider half day for staff? remote for rest of the day” to which Mr. Sayed responded “I agree,” effectively acknowledging the unsafe environment at the workplace. (Complaint ¶13.)

Plaintiff alleges on or about September 27, 2022, Bounrith Ly (“Mr. Ly”), Defendant’s Instructor of Computer Science, notified Plaintiff that “students complaint [sic] about the room being very hot. I will take class breaks more often to combat that.” (Complaint ¶14.) Plaintiff alleges he reported this complaint to Mr. Sayed, to which Mr. Sayed replied by saying to run the portable air conditioning, once again effectively acknowledging the unsafe working conditions. (Complaint ¶14.) Plaintiff alleges Mr. Sayed was aware of the dangerously high temperatures and lack of necessary air condition as he repeatedly stressed to Plaintiff that the air conditioning could not be running due to Defendant’s contract with the landlord. (Complaint ¶15.) Plaintiff alleges he not only made written reports and complaints to Mr. Sayed, but also made numerous verbal reports and complaints of unsafe working conditions due to excessive heat throughout his employment with Defendant. (Complaint ¶15.)

Plaintiff alleges after numerous complaints of unsafe working conditions went unaddressed, Plaintiff then reported the unsafe working conditions to Defendant’s human resources department on or about October 12, 2022. (Complaint ¶16.) Plaintiff alleges he mentioned that he has safety concerns and that other students and staff have made similar reports of unsafe conditions. (Complaint ¶16.) Plaintiff alleges Defendant’s Human Resources Administrator, Naseem Allana (“Ms. Allana”) responded to Plaintiff on or about October 14, 2022, and acknowledged the excessive heat problems. (Complaint ¶16.)

Plaintiff alleges Defendant, among other things, unlawfully retaliated against and terminated Plaintiff in retaliation for Plaintiff’s report of his reasonable belief that Defendant was non-compliant with health and safety standards, which created unsafe working conditions and, indeed, caused Plaintiff to seek medical intervention. (Complaint ¶23.) Plaintiff alleges his complaints were protected activities as defined under California law. (Complaint ¶23.) Plaintiff alleges he had reasonable cause to believe that the above disclosures all involved violations of California law. (Complaint ¶24.) Plaintiff alleges his assertion of his rights under Labor Code §1102.5 was a motivating reason for Defendant’s decision to discharge Plaintiff. (Complaint ¶26.) Plaintiff alleges Defendant’s conduct was a factor in causing harm to Plaintiff. (Complaint ¶27.) Plaintiff alleges as a direct and proximate result of Defendant’s conduct Plaintiff has lost and continues to lose wages and work benefits caused by his discharge. (Complaint ¶28.)

Plaintiff sufficiently alleges a cause of action for violation of whistleblower protection. Plaintiff made reports of unsafe working conditions as “Defendant failed to maintain appropriate office temperatures, which rendered the work environment unsafe to be in.” (Complaint ¶11; see also ¶¶15, 16, 18]. Per Ross v. County of Riverside (2019) 36 Cal.App.5th 580, Plaintiff did not need to provide “disclosures that he believed the [Defendant] was violating or not complying with a specific state or federal law [because] Labor Code section 1102.5, subdivision (b), does not require such an express statement.” (Ross, 36 Cal.App.5th at pgs. 592-593.)

(a) No person shall discharge or in any manner discriminate against any employee because the employee has done any of the following:

(1) Made any oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative.

(4) Reported a work-related fatality, injury, or illness, requested access to occupational injury or illness reports and records that are made or maintained pursuant to Subchapter 1 (commencing with Section 14000) of Chapter 1 of Division 1 of Title 8 of the California Code of Regulations, or exercised any other rights protected by the federal Occupational Safety and Health Act (29 U.S.C. Sec. 651 et seq.) . . ..

(b) Any employee who is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated against in the terms and conditions of employment by their employer because the employee has made a bona fide oral or written complaint to the division, other governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, their employer, or their representative, of unsafe working conditions, or work practices, in their employment or place of employment, or has participated in an employer-employee occupational health and safety committee, shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer . . ..

No employee shall be laid off or discharged for refusing to perform work in the performance of which this code, including Section 6400, any occupational safety or health standard, or any safety order of the division or standards board will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees. Any employee who is laid off or discharged in violation of this section or is otherwise not paid because the employee refused to perform work in the performance of which this code, any occupational safety or health standard, or any safety order of the division or standards board will be violated and where the violation would create a real and apparent hazard to the employee or their fellow employees shall have a right of action for wages for the time the employee is without work as a result of the layoff or discharge.

CACI 4605 provides that in order to establish a claim under Labor Code §6310, a plaintiff must allege the following: (1) plaintiff was an employee of defendant; (2) plaintiff, on his own behalf or on behalf of others, made an oral complaint to Defendant regarding unsafe working conditions or exercised his rights to workplace health and safety; (3) defendant discharged plaintiff; (4) plaintiff’s complaint was a substantial motivating reason for defendant’s decision to discharge plaintiff; (5) plaintiff was harmed; and (6) defendant’s conduct was a substantial factor in causing plaintiff’s harm. (See CACI 4605.)

With regard to element 2, the complaint must have been made to (1) the Division of Occupational Safety and Health, (2) to another governmental agencies having statutory responsibility for or assisting the division with reference to employee safety or health, (3) to the employer, or (4) to the employee’s representative. (CACI 4605; Lab. Code §6310(a)(1).)

Plaintiff alleges Defendant unlawfully retaliated against and terminated him in retaliation for his report of his reasonable belief that Defendant was non-compliant with health and safety standards, which created unsafe working conditions and, indeed, caused Plaintiff to seek medical intervention. (Complaint ¶33.) Plaintiff alleges his complaint was a protected activity as defined under California law. (Complaint ¶33.) Plaintiff alleges the assertion of his rights under Labor Code §§6310 and 6311 was a substantial motivating reason for Defendant’s decision to retaliate against and discharge Plaintiff. (Complaint ¶34.) Plaintiff alleges Defendant’s conduct was a substantial factor in causing harm to the Plaintiff. (Complaint ¶35.) Plaintiff alleges as a direct and proximate result of Defendant’s conduct Plaintiff has lost and continues to lose wages and work benefits caused by his discharge. (Complaint ¶36.)

Plaintiff sufficiently alleges a cause of action for violation of Labor Code §§6310 and 6311. Plaintiff alleges “[a]fter numerous complaints of unsafe working conditions went unaddressed, Plaintiff then reported the unsafe working conditions to Defendant’s human resources department on or about October 12, 2022. Plaintiff mentioned that he has safety concerns and that other students and staff have made similar reports of unsafe conditions.” (Complaint ¶16.) Plaintiff alleges “the excessive heat in the workplace even caused Plaintiff to seek medical intervention for which his medical professional placed him off work due to severe heat exhaustion on several occasions and even necessitated remote work for Plaintiff from or about October 11, 2022, until or about October 14, 2022.” (Complaint ¶17.) Plaintiff alleges “[a]s a result of Plaintiff’s repeated reports and complaints of unsafe working conditions, Defendant terminated his employment on or about October 20, 2022.” (Complaint ¶18.)

Accordingly, Defendant’s demurrer to Plaintiff’s 2nd of action for violation of Labor Code §§6310 and 6311 is overruled.

“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.)

“Labor Code section 1102.5, subdivision (b), which prohibits employer retaliation against an employee who reports a reasonably suspected violation of the law to a government or law enforcement agency, reflects the broad public policy interest in encouraging workplace ‘whistleblowers,’ who may without fear of retaliation report concerns regarding an employer’s illegal conduct. This public policy is the modern day equivalent of the long-established duty of the citizenry to bring to public attention the doings of a lawbreaker. [Citation.]” (Ferrick v. Santa Clara University (2014) 231 Cal.App.4th 1337, 1355.)

“To establish a claim for wrongful termination in violation of public policy, an employee must prove causation. (See CACI 2430 [using phrase ‘substantial motivating reason’ to express causation].) Claims of whistleblower harassment and retaliatory termination may not succeed where a plaintiff ‘cannot demonstrate the required nexus between his reporting of alleged statutory violations and his allegedly adverse treatment by [the employer].’” (Id.)

Plaintiff alleges at all times relevant to this action, Plaintiff was employed by Defendant. (Complaint ¶38.) Plaintiff alleges at all times relevant to this action, Labor Code §1102.5 and Government Code §§12900 et seq. were in full force and effect and were binding upon Defendant. (Complaint ¶39.) Plaintiff alleges these sections, inter alia, require Defendant to refrain from retaliating against and terminating any employee on the basis of making a complaint regarding a good faith belief of an unlawful activity, unsafe working conditions, unsafe working practices, and opposition to conduct related thereto, as previously pled herein. (Complaint ¶39.)

Plaintiff alleges Defendant’s conduct as previously alleged was in retaliation for Plaintiff’s assertion of rights under Labor Code §1102.5 and Government Code §§12900 et seq. (Complaint ¶40.) Plaintiff alleges his assertion of his rights under Labor Code §1102.5 and Government Code §§12900 et seq. was a substantial motivating reason for Defendant’s decision to terminate Plaintiff. (Complaint ¶41.) Plaintiff alleges Defendant’s conduct was a substantial factor in causing harm to Plaintiff as set forth herein. (Complaint ¶41.) Plaintiff alleges Government Code §§12900 et seq. evinces a policy that benefits society at large, was well-established at the time of Plaintiff’s discharge. (Complaint ¶42.) Plaintiff alleges Defendant’s wrongful termination of Plaintiff's employment was substantially motivated by making a complaint regarding a good faith belief of an unlawful activity, unsafe working conditions, unsafe working practices, and opposition to conduct related thereto, as previously pled herein. (Complaint ¶43.)

Plaintiff alleges as a direct and proximate result of Defendant’s actions, Plaintiff has suffered and continues to suffer losses in earnings and other benefits and will for a period of time in the future be unable to obtain gainful employment, as his ability to obtain such employment and earning capacity have been diminished. The exact amount of such expenses and losses is presently unknown, and Plaintiff will seek leave of court to amend this complaint to set forth the exact amount when it is ascertained. (Complaint ¶44.) Plaintiff alleges as a direct and proximate result of Defendant’s conduct, Plaintiff suffered general damages, as he was psychologically injured. (Complaint ¶45.) Plaintiff alleges such injuries have caused and continue to cause Plaintiff great mental pain and suffering. (Complaint ¶45.) Plaintiff alleges as a direct and proximate result of Defendant’s conduct, Plaintiff, for a period of time in the future, will be required to employ physicians and incur additional medical and incidental expenses. (Complaint ¶46.)

Plaintiff alleges on information and belief that the actions of Defendant’s employees, officers, directors, and/or managing agents were undertaken with the prior approval, consent, and authorization of Defendant and were subsequently authorized and ratified by it as well by and through its officers, directors, and/or managing agents. (Complaint ¶48.)

Plaintiff concedes Defendant is correct in its position that Plaintiff relied on Government Code §12900, to support the violation of public policy prong. (Opposition, pg. 10.) Plaintiff concedes he mistakenly alleged the said Government Code, instead of alleging Labor Code §§1102.5, 6310, and 6311, in his pleading. Plaintiff is willing to amend his complaint to clarify as such.

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

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.)

Defendant fails to specify where the uncertainty appears by reference to page line and numbers in the complaint. (See id.)

Defendant’s demurrer to Plaintiff’s 1st and 2nd causes of action is overruled.

Hon. Daniel M. Crowley

Judge of the Superior Court

[1] Defendant demurs on the basis of uncertainty, citing C.C.P. §430.10(b). However, a demurrer on the basis of uncertain pleadings is made pursuant to C.C.P. §430.10(f). C.C.P. §430.10(b) is an objection on the basis that the person who filed the pleading does not have the legal capacity to sue.