Judge Daniel M. Crowley, Case Number: 24STCV33894, Date: 2025-05-28 Tentative Ruling

Defendant The Naslund & Naslund Foundation’s demurrer to Plaintiff Diana Torres’ complaint is overruled.

Defendant The Naslund & Naslund Foundation (“Naslund”) (“Defendant”) demurs to Plaintiff Diana Torres’ (“Torres”) (“Plaintiff”) complaint (“Complaint”) on the grounds the Complaint fails to state facts sufficient to allege causes of action and is uncertain. (Notice of Demurrer, pgs. 2-3; C.C.P. §§430.10(e), (f).)[1]

Before filing a demurrer, the moving party must meet and confer in person, by telephone, or by video conference 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, emphasis added.)

Defendant’s counsel’s declaration states that on April 11, 2025, she “telephoned Counsel for Plaintiff Diana Torres and left a voice message stating that I was seeking to meet and confer regarding the issues presented by this demurrer. I receive no return call as of the filing of this demurrer.” (Decl. of Sagheb ¶3.) Defendant’s counsel’s meet and confer declaration is sufficient under C.C.P. §430.41. Accordingly, the Court will consider Defendant’s demurrer.

Plaintiff filed her operative Complaint on December 23, 2024, against Defendant alleging five causes of action: (1) discrimination in violation of Gov’t Code §§12940 et seq.; (2) retaliation in violation of Gov’t Code §§12940 et seq.; (3) failure to provide reasonable accommodations in violation of Gov’t Code §§12940 et seq.; (4) failure to engage in a good faith interactive process in violation of Gov’t Code §§12940 et seq.; and (5) wrongful termination in violation of public policy.

Defendant filed the instant demurrer on April 14, 2025. Plaintiff filed her opposition on April 28, 2025. As of the date of this hearing no reply has been filed.

Defendant demurs to the SAC, and the single cause of action for breach of contract/specific performance on the basis that the SAC fails to state facts sufficient to constitute causes of action and is uncertain because Plaintiff has failed to identify the terms of the contract and whether it is oral, written, or implied by conduct. (Demurrer.)

“[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.)

Defendant argues all of the causes of action in Plaintiff’s Complaint fail because she “makes a generic allegation that she filed a complaint with the California Civil Rights Department, but fails to indicate when that claim was filed or whether a right to sue letter issued.” (Demurrer, pg. 3.)

Defendant’s argument is unavailing. Under California law, a complaint is sufficient if it gives the defendant notice of the issues that must be addressed at trial; it need only contain a “statement of the facts constituting the cause of action, in ordinary and concise language.” (C.C.P. § 425.l0(a)(1).) A plaintiff is not required to plead evidentiary facts or legal theories with precision. Further, whether a party has properly exhausted administrative remedies is ordinarily a factual issue not suitable for resolution at the demurrer stage.

Here, Plaintiff has adequately plead that she exhausted her administrative remedies. Specifically, Plaintiff has plead that she Plaintiff filed a FEHA complaint and that it was filed with the California Civil Rights Department. (Complaint ¶12.) Therefore, Plaintiff has satisfied her administrative prerequisites.

“[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.)

Plaintiff alleges that on or about June 26, 2023, Defendant hired Plaintiff to work as a Coach for children with Downs Syndrome. (Complaint ¶18.) Plaintiff alleges that she was a full-time, nonexempt employee, and performed all her job duties satisfactorily, before she was wrongfully terminated on or about August 5, 2024. (Complaint ¶18.)

Plaintiff alleges she has a medical diagnosis of aplastic anemia. (Complaint ¶19.) Plaintiff alleges that this condition requires Plaintiff to regularly receive blood transfusions and chemotherapy. (Complaint ¶19.) Plaintiff alleges that this condition is a disability. (Complaint ¶19.) Plaintiff alleges she was required to miss work on days that she would receive treatment. (Complaint ¶19.) Plaintiff alleges this impacted her ability to perform the major life activity of work. (Complaint ¶19.) Plaintiff alleges Defendant was aware of Plaintiff’s medical appointments and the need for transfusions and chemotherapy. (Complaint ¶19.)

Plaintiff alleges that on or about July 29, 2024, she received medical treatment in the form a blood transfusion and chemotherapy. (Complaint ¶20.) Plaintiff alleges that she was taken off work from July 29, 2024 to August 5, 2024 to recover from the treatment. (Complaint ¶20.) Plaintiff alleges that she provided Defendant with the medical note taking her off for that time frame on July 29, 2024. (Complaint ¶20.) Plaintiff alleges that when she returned to work on August 5, 2024, Defendant informed Plaintiff that her employment was terminated. (Complaint ¶20.)

Plaintiff alleges that Defendant knew that Plaintiff had a disability or perceived her to have a disability but did not offer to accommodate Plaintiff’s disability. (Complaint ¶21.) Plaintiff alleges Defendant retaliated against Plaintiff for going out on medical leave to receive treatment for their condition. (Complaint ¶21.)

Plaintiff alleges her termination was substantially motivated by Plaintiff’s disability or perceived disability, medical condition or perceived medical condition, request for accommodation, and/or engagement in protected activities, without any discussion of disability accommodations or any good faith attempt to engage in the interactive process with Plaintiff. (Complaint ¶25.) Plaintiff alleges that Defendants’ discriminatory animus is evidenced by the previously mentioned facts. (Complaint ¶25.)

Plaintiff sufficiently alleges a cause of action for disability discrimination against Defendant. Defendant’s argument that Plaintiff does not allege a “medical condition” is either a misreading of Plaintiff’s Complaint or a misunderstanding of the law. Defendant is correct that FEHA defines a “medical condition” as,

(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.

(2) Genetic characteristics. For purposes of this section, “genetic characteristics” means either of the following:

(A) Any scientifically or medically identifiable gene or chromosome, or combination or alteration thereof, that is known to be a cause of a disease or disorder in a person or that person’s offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.

(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that person’s offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.

(Govt. Code §12926(i)(1)-(2).) Plaintiff does not allege that she has a health impairment related to or associated with a diagnosis of cancer or a record or history of cancer. Plaintiff alleges she is treated for aplastic anemia. (Complaint ¶19.) FEHA also provides a definition of “physical disability”:

(m) “Physical disability” includes, but is not limited to, all of the following:

(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:

(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.

(i) “Limits” shall be determined without regard to mitigating measures such as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.

(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.

(iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.

(2) Any other health impairment not described in paragraph (1) that requires special education or related services.

(3) Having a record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.

(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.

(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).

(6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.

(n) Notwithstanding subdivisions (j) and (m), if the definition of “disability” used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336)1 would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).

Plaintiff alleges a physical condition pursuant to Government Code §§12926(m)-(n). Plaintiff’s Complaint sufficiently alleges a cause of action for disability discrimination in violation of FEHA. (Complaint ¶¶19-25.)

Accordingly, Defendant’s demurrer to Plaintiff’s 1st cause of action is overruled.

“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer’s action. Once an employee establishes a prima facie case, the employer is required to offer a legitimate, nonretaliatory reason for the adverse employment action. If the employer produces a legitimate reason for the adverse employment action, the presumption of retaliation ‘drops out of the picture,’ and the burden shifts back to the employee to prove intentional retaliation.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042, internal citations omitted.)

Plaintiff alleges that on or about July 29, 2024, she received medical treatment in the form a blood transfusion and chemotherapy. (Complaint ¶20.) Plaintiff alleges that she was taken off work from July 29, 2024, to August 5, 2024, to recover from the treatment. (Complaint ¶20.) Plaintiff alleges that she provided Defendant with the medical note taking her off for that time frame on July 29, 2024. (Complaint ¶20.) Plaintiff alleges that when she returned to work on August 5, 2024, Defendant informed Plaintiff that her employment was terminated. (Complaint ¶20.)

Plaintiff alleges that at all relevant times, Defendants failed to properly engage in a good faith interactive process in an effort to properly accommodate Plaintiff’s disability and/or medical condition such that Plaintiff could continue working for Defendants. (Complaint ¶23.)

Plaintiff alleges that at all relevant times, Defendants failed to reasonably accommodate Plaintiff even though Plaintiff was able to perform the essential job duties of Plaintiff’s position or another position with or without accommodations. (Complaint ¶24.)

Plaintiff alleges she engaged in the protected activities of requesting accommodation, requesting medical leave and/or exercising her right to medical leave, and complaining about and protesting Defendants’ discriminatory and harassing conduct towards Plaintiff based upon Plaintiffs disability, medical condition, real or perceived, and use of medical leave. (Complaint ¶46.)

Plaintiff sufficiently alleges a cause of action for retaliation under FEHA. Protected activity under the FEHA includes requesting accommodation of a disability. (See Gov’t Code §§12940(m)(2) [“For an employer or other entity covered by this part to, . . . retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.”]; Sanchez v. Swissport, Inc. (2013) 213 Cal.App.4th 1331, 1341 [“[A]ppellant stated a claim under section 12940, subdivision (h), which prohibits an employer from retaliating against an employee for exercising her rights under section 12940. Appellant alleged she was fired because she sought reasonable accommodations for her disability.”].)

Accordingly, Defendant’s demurrer to Plaintiff’s 2nd cause of action is overruled.

“There are three elements to a failure to accommodate action: ‘(1) the plaintiff has a disability covered by the FEHA; (2) the plaintiff is a qualified individual (i.e., he or she can perform the essential functions of the position); and (3) the employer failed to reasonably accommodate the plaintiff’s disability. [Citation.]’” (Hernandez v. Rancho Santiago Community College District (2018) 22 Cal.App.5th 1187, 1193-1194.)

Plaintiff alleges she had a disability, physical condition that affected Plaintiff’s major life activities, and medical condition of which Defendants had both actual and constructive knowledge. (Complaint ¶57.)

Plaintiff alleges that on or about July 29, 2024, she received medical treatment in the form a blood transfusion and chemotherapy. (Complaint ¶20.) Plaintiff alleges that she was taken off work from July 29, 2024, to August 5, 2024, to recover from the treatment. (Complaint ¶20.) Plaintiff alleges that she provided Defendant with the medical note taking her off for that time frame on July 29, 2024. (Complaint ¶20.)

Plaintiff alleges that at all times herein, Plaintiff was willing and able to perform the duties and functions of the position in which Plaintiff was employed or could have performed the duties and functions of that position with reasonable accommodations. (Complaint ¶58.) Plaintiff alleges that at no time would the performance of the functions of the employment position, with a reasonable accommodation for Plaintiffs disability or medical condition, actual or as it was perceived by Defendants, have been a danger to Plaintiffs or any other person’s health or safety. (Complaint ¶58.) Plaintiff alleges that accommodation of her disability, real or perceived, or medical condition, real or perceived by Defendant, would not have imposed an undue hardship on Defendant. (Complaint ¶58.) Plaintiff alleges Defendant failed and refused to accommodate Plaintiff’s disability, failed to engage in the interactive process with Plaintiff and continue to violate this obligation, up to and including the date of Plaintiffs termination or, if Defendant contends Plaintiff was never terminated, through the present and ongoing. (Complaint ¶58.)

Plaintiff sufficiently alleges a cause of action for failure to provide reasonable accommodations. “A term of leave from work can be a reasonable accommodation under FEHA, and, therefore, a request for leave can be considered to be a request for accommodation under FEHA.” (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243, internal citation omitted.) Plaintiff sufficiently alleges that she presented Defendant with a medical note taking her off work from July 29, 2024, to August 5, 2024, to recover from the treatment. (Complaint ¶20.)

Accordingly, Defendant’s demurrer to Plaintiff’s 3rd cause of action is overruled.

“Two principles underlie a cause of action for failure to provide a reasonable accommodation. First, the employee must request an accommodation. Second, the parties must engage in an interactive process regarding the requested accommodation and, if the process fails, responsibility for the failure rests with the party who failed to participate in good faith.” (Gelfo v. Lockheed Martin Corp. (2006) 140 Cal.App.4th 34, 54, internal citations omitted.)

Plaintiff sufficiently alleges that she presented Defendant with a medical note taking her off work from July 29, 2024, to August 5, 2024, to recover from the treatment. (Complaint ¶20.)

Plaintiff alleges that she reported the disability to Defendant and requested accommodation, triggering Defendant’s obligation to engage in the interactive process with Plaintiff, but at all times herein, Defendants failed and refused to do so. (Complaint ¶66.) Plaintiff alleges that thereafter, despite Defendant’s continuing obligation to engage in the interactive process with Plaintiff, despite Plaintiff’s submission of a doctors’ notes identifying Plaintiff’s condition and Plaintiff’s desire to continue working in some capacity, Defendant failed and refused to have any dialogue with Plaintiff whatsoever, on any of these occasions, and Defendants violated, and continued to violate this obligation up to and including the date of Plaintiff’s termination or, if Defendant contends Plaintiff was never terminated, through the present and ongoing. (Complaint ¶66.)

Plaintiff sufficiently alleges a cause of action for failure to engage in a good faith interactive process. (See Complaint ¶66.)

Accordingly, Defendant’s demurrer to Plaintiff’s 4th cause of action 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.)

Plaintiff alleges on information and belief that her disability and/or medical condition, real or perceived, use of medical leave, engagement in protected activity with respect to these protected classes, and/or some combination thereof, were factors in Defendants’ conduct as alleged hereinabove. (Complaint ¶74.)

Plaintiff alleges that such discrimination and retaliation, resulting in the wrongful termination of Plaintiff’s employment on the basis of disability, medical condition, real or perceived, or use of medical leave, Plaintiff’s complaining of harassment and discrimination due to these protected classes, Plaintiff’s engagement in protected activity, and/or some combination of these factors, were a proximate cause in Plaintiff’s damages. (Complaint ¶75.)

Plaintiff alleges that as a result of Defendant’s actions, Plaintiff has 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 ¶27.)

Plaintiff sufficiently alleges a cause of action for wrongful termination in violation of public policy. (See Complaint ¶¶18-30, 71-80.) Defendant’s argument that Plaintiff’s claim fails because it is derivative of Plaintiff’s other causes of action is inapposite, in light of the fact that this Court overruled Defendant’s demurrer to the other four causes of action.

Accordingly, Defendant’s demurrer to Plaintiff’s 5th cause of action is overruled.

[1] The Court notes Defendant’s demurrer is procedurally improper. A demurrer “shall distinctly specify the grounds upon which any of the objections to the complaint . . . are taken. Unless it does so, it may be disregarded.” (C.C.P. §430.60.) Pursuant to this statute, the Rules of Court require that each ground for a demurrer be stated in a separate paragraph. (CRC, Rule 3.1320(a).)

Here, Defendant’s Notice of Motion is defective as to each cause of action. Specifically, Defendant challenges “the entire Complaint and each and every COA on the grounds that it is uncertain and fails to allege sufficient facts to state a COA to allege a Fair Employment and Housing Act (FEHA) qualified medical condition. CCP §430.10(e), (f).” (Demurrer pg. 2.) “[W]here such separate grounds of demurrer are conjoined, the complaint must be defective on each, or the demurrer must be overruled.” (Wilhoit v. Cunningham (1891) 87 Cal. 453, 459; see also Kraner v. Halsey (1889) 82 Cal.209, 212; Butler v. Wyman (1933) 128 Cal.App.736, 740.) Therefore, if the demurrer for uncertainty is deficient as to these causes of action, the demurrer must be overruled with respect to those claims.

The Court is disinclined to overrule Defendant’s demurrer on these grounds and will review Defendant’s demurrer on the merits. However, Defendant is advised of the demurrer’s procedural flaws.