Judge Douglas W. Stern, Case 22STCV27283 2022-12-29 Tentative Ruling

Judge: Douglas W. Stern, Case: 22STCV27283, Date: 2022-12-29 Tentative Ruling

Case Number: 22STCV27283 Hearing Date: December 29, 2022 Dept: 68

FAVIOLA NINO vs PHILLIPS 66 COMPANY, A DELAWARE CORPORATION, et al.

22STCV27283

BACKGROUND

Does a workers’s compensation health care provider become an “employer” for purposes of Labor Code Section 432.6 when it is claimed to have performed a drug test illegally? No. Are the allegations in the Complaint otherwise adequate to make it an “employer” of the Plaintiff? No, again.

The demurrer to the Tenth Cause of action is sustained.

A. Factual

Plaintiff’s Complaint alleges eleven causes of action in total, three of which are against Defendant CareOnSite, Inc. (Defendant). The three causes of action Plaintiff alleges against Defendant are Aiding and Abetting in Violation of the California Fair Employment and Housing Act, Violation of Constitutional Right to Privacy, and Violation of California Labor Code § 432.6. The last one, Violation of Cal. Labor Code § 432.6, is Plaintiff’s Tenth Cause of Action and the one to which Defendant demurs.

Plaintiff alleges she was employed with Phillips 66 from 2011 to the present. (Comp., ¶¶ 15-16.) On April 23, 2021, Plaintiff suffered an injury at work. (Comp., ¶ 17.) That same day Phillips 66 sent Plaintiff to be seen at CareOnSite, Phillip 66’s worker’s compensation provider. (Comp., ¶ 18.) Upon arriving at CareOnSite, Plaintiff alleges that CareOnSite immediately administered a drug test. (Comp., ¶ 19.) Plaintiff alleges she submitted to the drug test based on the understanding that she was required to do so as a condition of her continued employment and that if she refused to submit to the drug test, it would result in her immediate termination. (Comp., ¶ 19.) Plaintiff alleges CareOnSite did not undertake any efforts to determine whether the drug test was necessary. (Comp., ¶ 20.) Plaintiff alleges that CareOnSite and Phillips 66 did not possess any information implicating that Plaintiff was intoxicated or under the influence of any substance at the time of the April 23, 2021, injury. (Comp., ¶ 20.)

Plaintiff alleges CareOnSite aided and abetted Phillips 66 in discrimination and retaliation against Plaintiff by facilitating and directly performing the drug test on Plaintiff. (Comp., ¶ 20.) Plaintiff stated she passed the drug test. (Comp., ¶ 21.) Plaintiff further claims that Phillips 66 and CareOnSite required Plaintiff to submit to a drug test, alleging that it was an unlawful medical inquiry and an invasion of Plaintiff’s privacy rights. (Comp., ¶ 38.)

B. Procedural

This action was filed by Plaintiff on August 22, 2022. Defendant filed this Demurrer on November 14, 2022. Plaintiff filed her opposition on December 15, 2022.Defendant filed a reply on December 20, 2022.

II. MOVING PARTY’S GROUNDS FOR THE DEMURRER

Defendant demurs to Plaintiff’s Tenth Cause of Action against Defendant on the basis that the cause of action fails to plead sufficient facts to maintain a cause of action.

III. ANALYSIS

A. The Demurrer

As a general matter, in a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co.(2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.) As such, the court assumes the truth of the complaint’s properly pleaded or implied factual allegations. (Id.) The only issue a demurrer is concerned with is whether the complaint, as it stands, states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)

Where a demurrer is sustained, leave to amend must be allowed where there is a reasonable possibility of successful amendment. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC (2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable possibility that the plaintiff can state a good cause of action, it is error to sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245).

B. Demurrer as to the Tenth Cause of Action for Violation of Labor Code Section 432.6

Defendant demurs as to the cause of action for Violation of Labor Code Section 432.6 because Defendant alleges that Plaintiff has failed to plead facts sufficient to maintain this cause of action.

Under the California Fair Employment and Housing Act (“FEHA”) through Cal Gov. Code §12953, it is unlawful employment practice for an employer to violate California Labor Code §432.6. California Labor Code §432.6(a) states “a person shall not, as a condition of employment, continued employment…require any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the FEHA…” The statute and its subsections tend to show only a person with employment power, or an employer, should be held liable. California Labor Code §432.6(b) states “an employer shall not threaten, retaliate, or discriminate against…any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of the [FEHA]…”

The California Supreme Court has held that “individuals who do not themselves qualify as employers may not be sued under the FEHA for alleged discriminatory acts.” (Reno v. Baird (1998) 18 Cal.4th 640, 663.) The standard for whether an entity is an “employer” under the FEHA requires a comprehensive and level of day-to-day authority over matters such as hiring, firing, direction, supervision, and discipline of the employee. (Patterson v. Domino’s Pizza, LLC (2014) 60 Cal.4th 474, 499.) Courts in FEHA cases examine “the control exercised by the employer over the employee’s performance of employment duties” when assessing the employer/employee relationship. (Id.)

Here, Plaintiff has not pled sufficient facts to show that Defendant was its employer under the FEHA. Plaintiff has not alleged in her complaint that Defendant had any comprehensive, day-to-day authority over her as an employee. Plaintiff has simply alleged that Defendant was Phillips 66’s workers’ compensation provider. (Comp., ¶ 18.) This would not be enough to qualify Defendant as an employer under the meaning of the FEHA statute. As such, Plaintiff cannot maintain a cause of action for Violation of Labor Code Section 432.6 against Defendant.

Accordingly, Defendant’s Demurrer as to Plaintiff’s Tenth Cause of Action is sustained as to Defendant with leave to amend.