Judge: Daniel S. Murphy, Case: 23STCV20598, Date: 2023-12-11 Tentative Ruling

Case Number: 23STCV20598    Hearing Date: December 11, 2023    Dept: 32

BACKGROUND

            On August 28, 2023, Plaintiff Cecilia Arevalo filed this employment discrimination action against Defendant Adir International, LLC.

            On November 7, 2023, Defendant filed the instant demurrer and motion to strike. Plaintiff filed her opposition on November 28, 2023. Defendant filed its reply on December 4, 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.)

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 Schwartz Decl.)

DISCUSSION

I. Demurrer

a. Discrimination and Retaliation  

            Defendant argues that the complaint fails to allege that the adverse employment actions taken against Plaintiff were caused by discrimination or retaliation. However, Plaintiff has alleged that Defendant terminated her because of her age and disability, as well as engagement in protected activity. (Compl. ¶ 26.) This sufficiently places Defendant on notice of the claim. The evidentiary facts proving discriminatory and retaliatory intent should be left for discovery.  

b. Reasonable Accommodation/Failure to Engage

            Defendant argues that these claims fail because Plaintiff fails to allege the essential element that “the employee could perform the essential functions of the job with reasonable accommodation.” (See Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.) Plaintiff alleges that she “could have performed the duties and functions of that position with reasonable accommodations.” (Compl. ¶ 75.) This is sufficient for pleading purposes.

However, Defendant argues that the complaint contradicts itself by admitting that Plaintiff could not perform the essential functions of her job regardless of accommodation because Plaintiff was on leave. (See Compl. ¶¶ 20-21.) By that logic, no employee on leave could ever assert a failure to accommodate claim, because being on leave necessarily negates the element of being able to perform one’s job functions. Defendant cites no authority for the proposition that taking medical leave defeats a failure to accommodate claim as a matter of law. In fact, medical leave is itself a reasonable accommodation. (Moore v. Regents of University of California (2016) 248 Cal.App.4th 216, 243.)  

            The complaint alleges that Defendant terminated Plaintiff while she was on leave despite a doctor’s note. (Compl. ¶¶ 21-22.) The complaint alleges that Defendant refused to accommodate Plaintiff and refused to have any dialogue with Plaintiff despite being put on notice of Plaintiff’s disability. (Id., ¶¶ 75, 83.) For pleading purposes, this sufficiently supports a reasonable inference that Defendant failed to engage with Plaintiff and failed to provide a reasonable accommodation. Defendant is free to prove that Plaintiff could not perform the essential functions of her job, or that it provided Plaintiff with reasonable accommodations including leave. However, that is not a matter to be addressed on a demurrer. At this stage, the allegations are sufficiently clear to warrant an answer.   

c. Derivative Causes of Action

            The remaining causes of action are derivative: failure to prevent; declaratory relief; and wrongful termination in violation of public policy. Defendant reiterates the same arguments rejected above for these causes of action. Therefore, the derivative causes of action survive.

d. Unfair Competition

            Plaintiff filed for dismissal of her unfair competition claim on November 30, 2023, and the dismissal was entered on December 4, 2023. The demurrer is moot as to this claim.  

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, demonstrating intentional discrimination and retaliation, sufficiently support a finding of malice and oppression for pleading purposes. Plaintiff is not required to specifically identify a corporate managing agent at the pleading stage. This is an evidentiary matter for discovery. Plaintiff has properly pled punitive damages.

            b. Disgorgement

            Because Plaintiff has dismissed her UCL claim, there is no basis for disgorgement. This prayer is stricken.

            c. Post-Judgment Interest

            Defendant argues that Plaintiff has made an untimely claim for post-judgment interest, considering no judgment has been entered in the case. Plaintiff is entitled to include a prayer for post-judgment interest in her complaint. Whether she actually recovers any is addressed separately.  

CONCLUSION

            Defendant’s demurrer is OVERRULED. Defendant’s motion to strike is GRANTED as to the prayer for disgorgement and DENIED in all other respects.