Judge: Deirdre Hill, Case: 22TRCV00589, Date: 2023-01-17 Tentative Ruling

Case Number: 22TRCV00589    Hearing Date: January 17, 2023    Dept: M

Hearing Date:                         January 17, 2023

Moving Parties:                      Defendant Allstar Logo

Responding Party:                  Plaintiff Raul Zamora Cruz

Demurrer

            The court considered the moving, opposition, and reply papers.

RULING

            The demurrer is OVERRULED as to each cause of action in the complaint.  Defendant is ordered to file an answer within 20 days.

BACKGROUND

            On July 15, 2022, plaintiff Raul Zamora Cruz filed a complaint against Allstar Logo for (1) disability discrimination, (2) failure to provide reasonable accommodation, (3) failure to engage in the interactive process, and (4) wrongful termination in violation of public policy.

LEGAL AUTHORITY

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.  “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.  Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.”  SKF Farms v. Superior Court (1984) 153 Cal. App. 3d 902, 905.  “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 v. Mirda (2007) 147 Cal. App. 4th 740, 747.  Sufficient facts are the essential facts of the case “with reasonable precision and with particularity sufficiently specific to acquaint the defendant with the nature, source, and extent of his cause of action.” Gressley v. Williams (1961) 193 Cal. App. 2d 636, 643-44.

DISCUSSION

            Defendant Allstar Logo demurs to each of the causes of action in the complaint on the ground that they fail to state sufficient facts to constitute a cause of action.

            In the complaint, plaintiff alleges that they were employed by defendants as a machine operator.  Their employment began in 2014 and ended when they were wrongfully terminated on December 14, 2020.  Complaint, ¶6.  During their employment through the termination of their employment, plaintiff suffered from COVID-19 and limited plaintiff’s ability to participate in major life activities, including their ability to work (referred to as the “Disabilities”).  Id., ¶7.  Plaintiff received medical treatment for the Disabilities, and they may have required medical leave from work.  Plaintiff’s Disabilities persisted up to, and including, the time defendants terminated plaintiff’s employment.  Id., ¶8.  Defendants, via its managers, employees, and agents, knew of plaintiff’s Disabilities, and their need for medical treatment, therapy, and leave, contemporaneously from the time they suffered the Disabilities up to, and including the time defendants terminated plaintiff’s employment.  Id., ¶9.  Despite its knowledge of plaintiff’s Disabilities, defendants failed to engage in the interactive process with plaintiff and it failed to provide plaintiff with reasonable accommodation(s) for their disabilities.  Id., ¶10.  Defendants, through its managing agents, wrongfully terminated plaintiff’s employment due to their disabilities, their need and requests for accommodation of Disabilities.  Id., ¶11.

            1^st cause of action for disability discrimination

 Under FEHA, “It shall be an unlawful employment practice . . . [¶] (a) For an employer, because of the . . .  physical disability [or] . . .  medical condition . . . of any person, to refuse to hire or employ the person . . . , or to bar or to discharge the person from employment . . . , or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.”  Gov. Code § 12940(a).  The elements of disability discrimination in violation of FEHA are:  (1) plaintiff has a disability or medical condition or was regarded as suffering from a disability; (2) plaintiff could perform the essential duties of the job with or without reasonable accommodations; (3) the defendant’s adverse employment decision; and (4) because of plaintiff's actual or perceived disability or medical condition.  Faust v. Cal. Portland Cement Co. (2007) 150 Cal. App. 4th 864, 886.

The complaint alleges that plaintiff had Disabilities and/or medical conditions during their employment with defendants that were contemporaneously known to defendants.  Plaintiff, however, was qualified and able to perform the essential functions of their position either with, or without reasonable accommodations.  Complaint, ¶16.  During plaintiff’s employment, defendants through their supervisors, human resources personnel and agents, discriminated against plaintiff because of their Disabilities by subjecting plaintiff to adverse employment conditions including, denying plaintiff leave, failing to engage in the interactive process, failing to provide reasonable accommodation, and terminating plaintiff’s employment.  Id., ¶17.

The court finds that the allegations are sufficient to meet the elements.  Plaintiff alleges that they suffered from a disability (symptoms of COVID-19 that impaired major life activities), that they could perform the essential duties of the job, and that they were subject to an adverse employment action (termination) because of a disability.

The demurrer is OVERRULED.

2^nd cause of action for failure to provide reasonable accommodation in violation of FEHA

It is an unlawful employment practice, “[f]or an employer . . . to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee.”  Gov. Code §12490(m).  “In addition to a general prohibition against unlawful employment discrimination based on disability, FEHA provides an independent cause of action for an employer’s failure to provide a reasonable accommodation for an applicant’s or employee’s known disability.  (§12940(a), (m).)  Under the express provisions of the FEHA, the employer’s failure to reasonably accommodate a disabled individual is a violation of the statute in and of itself.’  Similar reasoning applies to violations of Government Code section 12940(n), for an employer's failure to engage in a good faith interactive process to determine an effective accommodation, once one is requested. (§12940(n)).”  Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4^th 34, 54.  

“The elements of a failure to accommodate claim [§12940(m)] are (1) the plaintiff has a disability under the FEHA, (2) the plaintiff is qualified to perform the essential functions of the position, and (3) the employer failed to reasonably accommodate the plaintiff’s disability.” Scotch v. Art Institute of California (2009) 173 Cal. App. 4th 986, 1009-1010.

The court finds that the allegations are sufficient to meet the elements.  Plaintiff pled sufficiently that they had a disability under FEHA, that they were qualified to perform the essential functions of the position with accommodations, and that defendants failed to accommodate a disability.

The demurrer is OVERRULED.

            3^rd cause of action for failure to engage in interactive process in violation of FEHA

“An employer’s failure to engage in this process is a separate FEHA violation.”  Wilson v. County of Orange (2009) 169 Cal. App. 4th 1185, 1193.  The FEHA imposes an additional duty on the employer “to engage in a timely, good faith, interactive process with the employee . . . to determine effective reasonable accommodations. . . .”  Gov. Code §12490(n).  “An employer is required to provide a reasonable accommodation for, and engage in the interactive process regarding, disabilities that are ‘known’ to the employer.  (§12940(m)-(n).)  [A] ‘known’ disability is read to mean a disability of which the employer has become aware, whether because it is obvious, the employee has brought it to the employer’s attention, it is based on the employer’s own perception—mistaken or not—of the existence of a disabling condition, or . . . the employer has come upon information indicating the presence of a disability.”  Gelfo v. Lockheed Martin Corp. (2006) 140 Cal. App. 4th 34, 61, n. 21.

The court finds that the allegations are sufficient.  Plaintiff alleges that defendants failed to engage in the interactive process.  See para. 17.

The demurrer is OVERRULED.

            4^th cause of action for wrongful termination in violation of public policy

            The elements for wrongful termination in violation of FEHA’s public policy against disability are that plaintiff suffered from a disability; plaintiff was capable of performing the essential functions of his position; plaintiff was subjected to an adverse employment action because of his disability; and employer knew of plaintiff’s disability when it decided to terminate his employment.  Prue v. Brady Co./ San Diego, Inc. (2015) 242 Cal. App. 4^th 1367, 1380.

            This claim is derivative of the FEHA claims. 

The court finds that the allegations are sufficient.

            The demurrer is OVERRULED.

            Plaintiff is ordered to give notice of the ruling.