Judge: Daniel S. Murphy, Case: 23STCV14103, Date: 2023-10-27 Tentative Ruling

Case Number: 23STCV14103    Hearing Date: October 27, 2023    Dept: 32

BACKGROUND

            On June 20, 2023, Plaintiff Stephanie D. Gonzalez filed this action against Defendant The Legacy Lawyers, A Professional Law Corporation, asserting causes of action for: (1) Labor Code retaliation; (2) FEHA retaliation; (3) discrimination; (4) harassment; (5) failure to prevent; (6) violation of equal pay; and (7) constructive discharge.

            The action stems from Plaintiff’s assertion that she was paid less than her male coworkers. Plaintiff alleges that after she complained about the disparity, Defendant began retaliating against her. Plaintiff alleges that the working conditions became so intolerable that she was forced to resign.

            On August 22, 2023, Defendant filed the instant demurrer and motion to strike. Plaintiff filed her opposition on October 16, 2023. Defendant filed its reply on October 20, 2023.

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.) Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Ibid.) The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Hahn, supra, 147 Cal.App.4th at 747.)

Any party, within the time allowed to respond to a pleading, may serve and file a notice of motion to strike the whole or any part of that pleading. (Code Civ. Proc., § 435, subd. (b).) The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike (1) any irrelevant, false, or improper matter inserted in any pleading and (2) all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Id., § 436.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Id., § 437.)

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 Underwood Decl.)

DISCUSSION

I. Demurrer

            a. Adverse Employment Action

            An adverse employment action is any “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1063.) “Constructive discharge, like actual discharge, is a materially adverse employment action.” (St. Myers v. Dignity Health (2019) 44 Cal.App.5th 301, 315.) “In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign.” (Ibid.)

            Defendant argues that the complaint fails to allege working conditions that were so intolerable as to constitute constructive discharge and fails to allege any other adverse employment action. But “whether conditions were so intolerable as to justify a reasonable employee's decision to resign is normally a question of fact.” (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 827.) Here, Plaintiff has alleged that she was paid unequally, worked in a sexist and male-dominated environment, was accused of being toxic and confrontational for voicing her concerns, did not have her complaints taken seriously, got berated in a hostile manner, was put on leave, received unwarranted discipline, and faced threats about her job, as some examples. (Compl. ¶¶ 18, 29, 30, 33, 40, 41.)

For pleading purposes, these allegations support an inference that Plaintiff was subjected to an intolerable working environment that would have forced a reasonable person to resign. The allegations also sufficiently describe a “course or pattern of conduct that, taken as a whole, materially and adversely affected the terms, and conditions of a plaintiff’s employment.” (See Holmes, supra, 191 Cal.App.4th at p. 1063.) Therefore, Plaintiff has adequately pled an adverse employment action, including constructive discharge.

b. Discriminatory Motive

Defendant argues that the complaint fails to allege facts demonstrating that she was discriminated against based on her gender. However, the complaint alleges that Plaintiff was paid less than her male counterparts. (Compl. ¶ 18.) Plaintiff additionally alleges the adverse actions taken against her were based on her gender. (Id., ¶ 103.) This is sufficient at the pleading stage to infer discriminatory animus towards Plaintiff’s gender. Precise evidentiary facts may be ascertained in discovery.   

c. Harassment

Harassment focuses on situations in which the social environment of the workplace becomes intolerable because the harassment communicates an offensive message to the harassed employee. (Roby v. McKesson Corp. (2009) 47 Cal.4th 686, 706.) “A single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment.” (Gov. Code, § 12923, subd. (b).) The allegations discussed above sufficiently demonstrate a hostile work environment that unreasonably interfered with Plaintiff’s work.      

d. Failure to Prevent

Defendant argues that the failure to prevent claim fails because the underlying discrimination and harassment claims fail. However, as discussed above, the discrimination and harassment claims are adequately pled. Therefore, the failure to prevent claim survives.

e. Equal Pay Act

“An employer shall not pay any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” (Lab. Code, § 1197.5(a).) An exception exists if the employer can demonstrate that the wage differential is based one or more of the following factors: a seniority system; a merit system; a system that measures earnings by quantity or quality of production; or a bona fide factor other than sex. (Id., § 1197.5(a)(1).)

Defendant argues that Plaintiff has not alleged that she was paid less for “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.” Defendant further contends that the complaint fails to preclude the possibility that the wage differential was based on one of the neutral factors enumerated in Section 1197.5(a)(1).

However, Plaintiff has alleged that she was paid less than similarly-situated male counterparts who performed jobs requiring equal skill under similar conditions. (Compl. ¶¶ 18-19, 159.) This is sufficient for pleading purposes. Whether the male employees actually performed jobs requiring equal skill is a matter of evidence. The exceptions listed in Section 1197.5(a)(1) are for the employer to prove in order to avoid a violation of the EPA. It is not Plaintiff’s burden to disprove all the possible exceptions. In any case, Plaintiff has directly alleged that she was discriminated against based on her gender, thus establishing for pleading purposes that the pay disparity was not based on any legitimate factor.

f. Constructive Discharge in Violation of Public Policy

“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.” (Yau v. Allen (2014) 229 Cal.App.4th 144, 154.) While an at-will employee can be terminated for no reason or an arbitrary reason, she cannot be terminated for an unlawful reason or a purpose that contravenes fundamental public policy. (Casella v. SouthWest Dealer Services, Inc. (2007) 157 Cal.App.4th 1127, 1138-1139.)

            “[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 at p. 1090-91.)

            Defendant argues that Plaintiff has not alleged an adverse employment action or a causal link to her protected activity. However, as discussed above, Plaintiff has adequately alleged an adverse employment action. Plaintiff has also alleged that the actions taken against her were in retaliation for her reporting the wage disparity. (Compl. ¶ 2.)

            Defendant further argues that this claim is duplicative of the first cause of action for whistleblower retaliation because it relies on the same allegations. However, the different causes of action in the complaint naturally arise from the same set of facts. A claim does not fail simply because it rehashes prior allegations. Plaintiff is entitled to allege numerous legal theories and pursue alternative avenues to recovery. “A plaintiff may plead cumulative or inconsistent causes of action.” (Gherman v. Colburn (1977) 72 Cal.App.3d 544, 565.)  

II. Motion to Strike

            a. Punitive Damages

            “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” (Civ. Code, § 3294, subd. (a).) “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Id., subd. (c)(1).) “‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Id., subd. (c)(2).) Fraud is “intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.” (Id., subd. (c)(3).)

            The allegations discussed above, describing intentional discrimination, harassment, and retaliation, sufficiently demonstrate malice and oppression for purposes of punitive damages.

            b. Irrelevant Allegations

            Defendant moves to strike portions of paragraphs 15 and 40 from the complaint which state that Defendant’s principal resides in Texas. Defendant argues that this is irrelevant to Plaintiff’s claims. The allegations appropriately provide context and background.

CONCLUSION

            Defendant’s demurrer is OVERRULED. Defendant’s motion to strike is DENIED.