Judge: Daniel S. Murphy, Case: 22STCV31590, Date: 2023-02-01 Tentative Ruling

Case Number: 22STCV31590    Hearing Date: February 1, 2023    Dept: 32

BACKGROUND

            On October 25, 2022, Plaintiff Laura Wildmann filed this action against Defendant Pacific Mechanical Contractors for (1) disability discrimination, (2) retaliation, (3) wrongful termination in violation of FEHA, (4) failure to prevent, and (5) wrongful termination in violation of public policy.

            Plaintiff began employment with Defendant around June 2020. (Compl. ¶ 7.) Around March 2021, Plaintiff’s daughter was hospitalized, and Plaintiff requested to work from home or take leave. (Id., ¶¶ 8-10.) Later that month, Plaintiff requested a day off for her daughter’s doctor’s appointment. (Id., ¶ 11.) When Plaintiff returned to work, she was terminated. (Id., ¶ 12.) Plaintiff alleges that she was terminated due to her association with her daughter, who has a serious medical condition, and for requesting medical leave. (Id., ¶ 13.)

            On November 28, 2022, Defendant filed the instant demurrer against the complaint.

LEGAL STANDARD

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.) When considering demurrers, courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228.) In a demurrer proceeding, the defects must be apparent on the face of the pleading or by proper judicial notice. (Code Civ. Proc., § 430.30, subd. (a).) A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.) A complaint will survive demurrer if it sufficiently apprises the defendant of the issues, and specificity is not required where discovery will clarify the ambiguities. (See Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) All reasonable inferences are drawn in favor of the complaint. (Kruss v. Booth (2010) 185 Cal.App.4th 699, 713.)

MEET AND CONFER

Before filing a demurrer or a motion to strike, the demurring or moving party is required to meet and confer with the party who filed the pleading demurred to or the pleading that is subject to the motion to strike for the purposes of determining whether an agreement can be reached through a filing of an amended pleading that would resolve the objections to be raised in the demurrer. (Code Civ. Proc., §§ 430.41, 435.5.) The Court notes that Defendant has complied with the meet and confer requirement. (See Lee Decl.)

DISCUSSION

I. Discrimination

            FEHA prohibits employers from discrimination based on various protected characteristics, including physical disability and medical condition. (Gov. Code, § 12940(a).) Physical disability and medical condition have specific definitions under FEHA. (Id., § 12926(i), (m).) In addition, “‘[r]ace, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, reproductive health decisionmaking, or veteran or military status’ includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.” (Id., subd. (o).) In other words, “FEHA provides a cause of action for associational disability discrimination, although it is a seldom-litigated cause of action.” (Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1036.) “The very definition of a ‘physical disability’ embraces association with a physically disabled person.” (Ibid.)

            Plaintiff’s cause of action for disability discrimination is based on associational disability because Plaintiff alleges that her daughter is disabled and/or has a medical condition. (Compl. ¶ 13.) Defendant first argues that the discrimination claim fails because Plaintiff does not allege what disability or medical condition her daughter has. However, such specificity is not required at the pleading stage. Defendant is clearly aware of the definition of physical disability and medical condition. Therefore, when Plaintiff alleges that she has been discriminated against based on those characteristics, Defendant is sufficiently on notice of the nature of the claim. (See Ludgate, supra, 82 Cal.App.4th at p. 608.) Whether Plaintiff’s daughter’s condition actually constitutes a disability or medical condition under FEHA is a matter for discovery. Furthermore, Plaintiff’s daughter’s privacy is not sacrificed simply because Plaintiff chose to file this lawsuit. Plaintiff is not required to reveal her daughter’s medical condition on public record.

            Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, 659 is distinguishable because in that case, the plaintiff admittedly did not actually suffer from a disability, but only anticipated becoming disabled. This is not the case here, since Plaintiff alleges that her daughter in fact suffers from a disability or medical condition. Defendant is correct that “[i]t is not enough merely to allege a physical disability,” because a plaintiff must also prove that their disability actually fits the definition provided in FEHA. (Ibid.) However, that is not a concern at the pleading stage. For demurrer purposes, it is enough to simply allege a physical disability, because that is all Plaintiff is required to do at this point. Rope does not impose a pleading standard any stricter than that discussed above. The complaint only needs to place Defendant on notice of the nature of the claim, which it does. Therefore, the discrimination claim is adequately pled.

II. Retaliation

            FEHA requires an employer to “make reasonable accommodation for the known physical or mental disability of an applicant or employee.” (Gov. Code, § 12940(m)(1).) Additionally, FEHA makes it unlawful for an employer to discriminate or retaliate against an employee for requesting an accommodation. (Id., subd. (m)(2).) Plaintiff alleges that she was terminated for requesting leave to care for her daughter. (Compl. ¶ 13.) Defendant argues that this does not constitute retaliation under FEHA because Plaintiff did not engage in any protected activity. Specifically, Defendant contends that requesting an accommodation for associational disability is not protected activity because an employer has no underlying duty to provide such accommodations under subdivision (m).

            The only published California appellate decision to address this issue is Castro-Ramirez. In that case, the court stated, in dicta, that “subdivision (m) may reasonably be interpreted to require accommodation based on the employee's association with a physically disabled person.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1039.) This is because “[t]he very definition of a ‘physical disability’ embraces association with a physically disabled person.” (Id. at p. 1036; Gov. Code, § 12926(o).) In the absence of published California authority to the contrary, this Court will not dismiss a potentially valid claim at the demurrer stage. Although Defendant cites federal cases holding that associational disability cannot support accommodation or retaliation claims, FEHA differs from the federal ADA by including a broader definition of “physical disability.” (See Gov. Code, § 12926(o).) “One instance in which we should part ways with federal case authority is when the statutory language is not parallel. That is the case here.” (Castro-Ramirez, supra, 2 Cal.App.5th at p. 1040.) FEHA is intended to provide more protections than that afforded by the ADA. (Gov. Code, § 12926.1(a).)  

            Because an employer’s duty to accommodate arguably extends to associational disability, requesting such an accommodation may constitute protected activity. (See Gov. Code, § 12940(m)(2).) Therefore, the retaliation claim is sufficiently pled.  

III. Remaining Causes of Action

            Defendant argues that the third, fourth, and fifth causes of action fail because they are derivative of the other defective claims. (Dem. 9:8-10:11.) However, as discussed above, the discrimination and retaliation claims are adequately pled. Therefore, the derivative claims also survive.

CONCLUSION

            Defendant’s demurrer is OVERRULED.