Judge: Douglas W. Stern, Case: 22STCV27283, Date: 2023-05-16 Tentative Ruling

Case Number: 22STCV27283    Hearing Date: May 16, 2023    Dept: 68

Faviola Nino vs. Phillips 66 Company, et al., MOVING PARTY: Defendant CareOnSite, Inc.

RESPONDING PARTY: Plaintiff Faviola Nino

Demurrer to First Amended Complaint 

I. BACKGROUND

A. Factual

Plaintiff’s First Amended Complaint alleges eleven causes of action in total, three of which are against Defendant CareOnSite, Inc. (CareOnSite). The three causes of action Plaintiff alleges against CareOnSite 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 CareOnSite demurs.

Plaintiff alleges she was employed with Phillips 66 from 2011 to the present. (FAC, ¶ 16.) On April 23, 2021, Plaintiff suffered an injury at work. (FAC, ¶ 17.) That same day Phillips 66 sent Plaintiff to be seen at CareOnSite, Phillip 66’s worker’s compensation provider. (FAC, ¶ 18.) Upon arriving at CareOnSite, Plaintiff alleges that CareOnSite immediately administered a drug test. (FAC, ¶ 20.) 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. (FAC, ¶ 20.) Plaintiff alleges CareOnSite did not undertake any efforts to determine whether the drug test was necessary. (FAC, ¶ 21.) 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. (FAC, ¶ 21.) 

Plaintiff alleges CareOnSite aided and abetted Phillips 66 in discrimination and retaliation against Plaintiff by facilitating and directly performing the drug test on Plaintiff. (FAC, ¶ 21.) Plaintiff stated she passed the drug test. (FAC, ¶ 23.) 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. (FAC, ¶ 40.)

B. Procedural

This action was filed by Plaintiff on August 22, 2022. A demurrer by CareOnSite was previously sustained by this Court on December 29, 2022. Plaintiff filed her FAC on January 27, 2023. CareOnSite filed a demurrer to Plaintiff’s FAC on March 30, 2023. Plaintiff filed her opposition on May 3, 2023. CareOnSite filed a reply on May 9, 2023.

C. Judicial Notice

CareOnSite requests that the Court take judicial of Plaintiff’s complaint and the minute order from December 29, 2022. The Court declines to take judicial of these documents as it is unnecessary for the Court to take judicial notice of documents in the Court’s file. 

CareOnSite also requests that the Court take judicial notice of a Master Professional Services Agreement between itself and Phillips 66. This is not a proper request for judicial notice upon demurrer. CareOnSite’s request for judicial notice of this document is denied.

II. 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 and that the cause of action of is uncertain. (See CCP § 430.10(e) & (f).)

            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.)

Plaintiff has still not pled sufficient facts to show that CareOnSite was her employer under the FEHA. Plaintiff has not alleged in her FAC that CareOnSite had any comprehensive, day-to-day authority over her as an employee. Plaintiff has simply alleged that CareOnSite was Phillips 66’s workers’ compensation provider (FAC, ¶ 18), and she once again tries to use the agency argument (FAC, ¶¶ 116-117). This Court previously rejected this argument, as the alleged agency would not be enough to qualify CareOnSite as an employer under the meaning of the FEHA statute. Plaintiff attempts to make an argument regarding the definition of person under Labor Code § 432.6(a), but the Court does not find this argument compelling. As such, Plaintiff cannot maintain a cause of action for Violation of Labor Code Section 432.6 against CareOnSite.

It is unlikely that Plaintiff will be able to plead facts sufficient to demonstrate that CareOnSite was an employer. Accordingly, CareOnSite’s Demurrer as to Plaintiff’s Tenth Cause of Action is sustained as to CareOnSite without leave to amend.

III. ORDER

1.    Defendant CareOnSite’s demurrer to Plaintiff’s Tenth Cause of Action is sustained without leave to amend.